IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE AK-CHIN INDIAN ) COMMUNITY, ) ) Plaintiff, ) ) v. ) Case No. 06-09321 (ECH) ) Judge Emily C. Hewitt THE UNITED STATES, ) Electronically filed on ) December 22, 2008 ) Defendant. ) ) PLAINTIFF S AMENDED MOTION TO OBTAIN INFORMATION FROM DEFENDANT REGARDING SEARCHES AT THE AIRR 1 During the December 22, 2008 Status Conference in this case, Plaintiff, the Ak-Chin Indian Community ( Ak-Chin ), expressed concern that it had not received certain critical information regarding the searches Defendant conducted on the BISS to identify the 40 boxes Defendant selected for the initial search for records responsive to Ak-Chin s discovery requests at the American Indian Records Repository ( AIRR ). (See December 11, 2008 Order ( 12/11/08 Order )). The Court directed Ak-Chin to prepare a motion and order which identified the information it is seeking. By way of background, the Court s December 11, 2008 Order required the parties to enter an agreement regarding which searches are to be used to yield a list of boxes to be inspected by the parties during this initial search at the AIRR. (12/11/08 Order, 1(c).) It also ordered that to file status reports in compliance with part 2(c) of the Court s December 5, 2008 Order, the parties shall track the success of each search used with regard to the boxes yielded by 1 After Ak-Chin filed its original Motion, Ak-Chin s counsel noticed a typographical error on page 2 of the motion. This amended motion is identical to the original motion, except that it corrects that typographical error.
that particular search and the responsive documents ultimately found in those boxes. (12/11/08 Order, 1(c).) The Court further ordered that the status reports: shall contain the parties learnings regarding the relationship between the various searches used to identify the boxes to be inspected at the AIRR and the responsive documents yielded from the various searches. In their reports, the parties shall include the relative success of each search method used and the parties proposals for refinement of searches in the next stages of discovery. (12/11/08 Order, 4.) To comply with the Court s order, the parties reached agreement regarding the search terms to be used at the AIRR. On December 14, 2008, Ak-Chin selected five sets of Query Criteria proposed by Defendant in a 25-page memorandum submitted to Ak-Chin on December 12, 2008. (See December 12, 2008 e-mail from Defendant s counsel to Plaintiff s counsel and accompanying BISS Refinement Procedures Memorandum, attached hereto as Exhibit A.) While Ak-Chin expressed that it had concerns about some of the search terms that appear to have been used, it deferred to Defendant s expertise on the subject and selected the Query Criteria Used for Determining Most Responsive Boxes set forth in the BISS Refinement Procedures Memorandum for First Request Nos. 1, 13, and 14, and Second Requests 2 and 12. (See December 14, 2008 e-mail from Bill Austin to Alison Garner, attached hereto as Exhibit B.) Ak- Chin noted that Defendant recommended that each of the Query Criteria Used to for Determining the Most Responsive Boxes also be used as a means for identifying boxes responsive to a number of other Ak-Chin s discovery requests. These Query Criteria, however, often had different Strategies for Locating Relevant Boxes for the other requests. (See Exhibits A & B.) Defendant had informed Ak-Chin that in conjunction with Ak-Chin s designation as to which set of Query Criteria Used to for Determining the Most Responsive Boxes, Ak-Chin also could request that Defendant make use of the various Strategies for 2
Locating Relevant Boxes which Defendant listed after each set of Query Criteria Used for Determining the Most Responsive Boxes. (See Exhibit B and December 14, 2008 e-mail from Alison Garner to Bill Austin, attached hereto as Exhibit C.) Ak-Chin deferred to Defendant on which of the various Strategies to use, but requested that their use be indicated in the search information shared with Ak-Chin. (See Exhibit B.) On December 17, 2008, Defendant provided Ak-Chin with a listing of the 40 boxes it had selected for the initial search at the AIRR. (December 17, 2008 letter from Alexandra Smith to G. William Austin, attached hereto as Exhibit D.) The listing identified the boxes by five categories of search criteria and as falling into the categories of those boxes most likely to contain responsive documents, not likely to contain responsive documents and those boxes requiring manual review. (Id.) The letter also explained that to select the boxes with the most likely categories to be reviewed for the initial search, Defendant selected boxes with the source code H57 (the Pima Agency). (Id.) Defendant also produced the BISS search results for the boxes identified as most likely to contain responsive documents from the five categories of search criteria Defendant used to locate the documents, but did not produce BISS search results for the boxes falling under the not likely and manual review categories. (Id.) Because Defendant previously indicated that it would be using various Strategies to locate documents, and not just five, Ak-Chin sought clarification on what Strategies in fact were used, e.g., it was unclear to Ak-Chin whether Defendant implemented various strategies for each of the requests, as it proposed to do in its BISS Refinement Procedures Memorandum, or only used those strategies associated with five of Ak-Chin s document requests. Ak-Chin also sought from Defendant an explanation as to how Defendant differentiated between those boxes falling into the not likely and manual review categories and how Defendant selected the 3
forty boxes to be reviewed among those two categories and the most likely category. Ak-Chin further sought and obtained from Defendant the BISS search results for the boxes Defendant identified as not likely to contain responsive documents and those requiring manual review. Ak-Chin cannot determine the search terms used to obtain these results, however, by reviewing the BISS search results. To meet the Court s objective of track[ing] the success of each search used with regard to the boxes yielded by that particular search, Ak-Chin still needs an explanation, despite the parties efforts, as to which Strategies Defendant used with regard to each box. (12/11/08 Order, 1(c).) In addition, in response to a request for clarification as to how Defendant differentiated between those boxes falling into the not likely and manual review categories and how Defendant selected the 40 boxes to be reviewed among those two categories and the most likely category, Defendant told Ak-Chin that its representatives at the AIRR would be advised as to how Defendant made such determinations. Ak-Chin has learned, however, that its representatives received no such explanation while at the AIRR. Therefore, it remains unclear to Ak-Chin how Defendant used the H57 Code to identify boxes most likely to contain responsive records. That is, Defendant has not revealed which fields in the BISS it searched for the H57 Code. In addition, based on Ak-Chin s representatives review of the records at the AIRR, the H57 Code also was associated with boxes that fell within Defendant s designation of boxes requiring manual review. Ak-Chin has received no explanation as to how Defendant differentiated between boxes requiring manual review and the boxes identified as not likely to contain responsive documents. In short, Ak-Chin does not currently have an adequate understanding of how Defendant identified the boxes by the three categories of most likely not likely and manual review. Ak-Chin requires this information so that it can submit to the 4
Court a status report which include[s] the relative success of each search method used and the parties proposals for refinement of searches in the next stages of discovery. (12/11/08 Order, 4) Accordingly, Ak-Chin respectfully requests that the Court order Defendant to provide Ak-Chin with the following information: (1) The Query Criteria Used for Determining Most Responsive Boxes, as that phrase is used in Defendant s BISS Refinement Procedures Memorandum, for each of the 40 boxes selected by Defendant to be searched at the AIRR (See Exhibit A); (2) The various Strateg[ies] for Locating Relevant Boxes, as that phrase is used in Defendant s BISS Refinement Procedures Memorandum, for each of the 40 boxes selected by Defendant to be searched at the AIRR (See Exhibit A); (3) A detailed description of how Defendant identified boxes as most likely to contain responsive records, not likely to contain responsive records, and as requiring manual review, including but not limited to, any additional search terms Defendant used to differentiate these boxes and which fields in the BISS Defendant searched; and (4) A detailed description of how Defendant selected the 40 boxes to be reviewed by Defendant, among the boxes identified as a result of the searches agreed upon by the parties. Because Defendant already has conducted these searches and the information is currently within Defendant s possession and so that Ak-Chin has sufficient time to evaluate the searches in advance of the January 14, 2009 deadline to file a status report, Ak-Chin requests that Defendant be ordered to provide the information contained in paragraphs (1)-(4) by January 5, 2009. 5
This the 22nd day of December, 2008. Respectfully submitted, /s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail: kharper@kilpatrickstockton.com G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail: baustin@kilpatrickstockton.com CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail: cmunson@kilpatrickstockton.com Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Tel: (202) 508-5800 Fax: (202) 505-5858 Attorneys for Plaintiff The Ak-Chin Indian Community 6