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Cobell v. Norton

June 17, 2005


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,


This matter comes before the Court on the defendants' Motion [2832] to Strike Plaintiffs' Notice of Supplemental Information in Support of Plaintiffs' Renewed Request for Emergency Status Conference. Upon consideration of the defendants' motion, the opposition thereto, the reply, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be denied. The Court's reasoning is set forth below.


On December 5, 2001, having been presented with extensive evidence of the lack of security for Individual Indian Trust data housed on or accessed by information technology systems at Interior, the Court entered a temporary restraining order requiring "that defendants shall immediately disconnect from the Internet all information technology systems that house or provide access to individual Indian trust data [and] that defendants shall immediately disconnect from the Internet all computers within the custody and control of the Department of the Interior, its employees and contractors, that have access to individual Indian trust data." Temporary Restraining Order [1036], issued Dec. 5, 2001, at 2.*fn1 At Interior's urging, the Court entered a consent order on December 17, 2001, outlining a procedure by which Interior could reconnect its IT systems to the Internet only after satisfying the Special Master that those systems were secure. See Consent Order [1063], issued Dec. 17, 2001. The December 17, 2001 Consent Order, not having been modified by any subsequent Order, remains in effect today.

The Special Master's process for reviewing Interior's IT security broke down in late spring, 2003, see Cobell v. Norton, 274 F. Supp. 2d 111, 114--24 (recounting the events surrounding the disintegration of this process), and as a result the Court issued a preliminary injunction on June 28, 2003, requiring that Interior "immediately disconnect from the Internet all Information Technology Systems within [its] custody or control ... until such time as the Court approves their reconnection to the Internet." Id. at 135. The Court allowed Interior IT systems connected to the Internet as of the date the preliminary injunction was issued to remain connected if they "impact[ed] life or property," or if Interior certified to Court that the connected systems either did not house or access Individual Indian Trust data or were secure from unauthorized access from the Internet. See id. at 135--36.

Upon reviewing Interior's certifications for Internet-connected IT systems submitted in accordance with the June 28, 2003 preliminary injunction and finding them to be both procedurally and substantively defective, the Court, on March 15, 2004, entered a preliminary injunction that required Interior to disconnect (or to keep disconnected) from the Internet Interior's IT systems at certain bureaus and offices, including the BIA, regardless of whether or not they housed or accessed Individual Indian Trust Data. See Cobell v. Norton ("Cobell XII"), 310 F. Supp. 2d 77 (D.D.C. 2004). The March 15, 2004 preliminary injunction superseded and replaced the Court's June 28, 2003 preliminary injunction. See Preliminary Injunction Order [2531], issued Mar. 15, 2004, at 1.

The D.C. Circuit vacated the Court's March 2004 preliminary injunction by opinion issued December 3, 2004. See Cobell v. Norton, 391 F.3d 251 (D.C. Cir. Dec. 3, 2004). In the wake of the decision of the Court of Appeals, the plaintiffs requested that the Court hold an emergency status conference to determine how to proceed in addressing Interior's Indian trust-related IT security issues going forward. See Pls.' Request [2776] for Emergency Status Conference Regarding the Security of Electronic Trust Records, filed Dec. 3, 2004; Pl's Renewed Request [2804] for Emergency Status Conference Regarding the Security of Electronic Trust Records, filed Jan. 4, 2005.

The plaintiffs subsequently filed, as an attachment to their Notice of Supplemental Information in Support of Plaintiffs' Renewed Request for Emergency Status Conference ("Pls.' Notice"), a copy of a May 7, 2004 memorandum from Kaniah Konkoly-Thege, an attorney in Interior's Office of the Solicitor, to BIA Chief Information Officer Brian Burns ("the memorandum"). See Pls.' Notice [2810], filed Jan. 11, 2005, at Ex. 1 (Mem. from KonkolyThege to Burns, May 7, 2004). That memorandum recounts the advice of both the Department of Justice ("DOJ") and the Solicitor's Office regarding the Secretary of the Interior's conclusion that the proposal of the Assistant Secretary of the Interior for Indian Affairs and the BIA to "implement Lotus Notes remote dial-up" on BIA IT systems would not violate "any of the Cobell court orders."*fn2

The defendants make two arguments in support of their motion to strike the plaintiffs' Notice and the memorandum. First, the defendants contend that the allegation in the plaintiffs' Notice-that the Lotus Notes remote dial-up system at BIA would constitute an illicit Internet connection-has no basis in fact and that the Notice should be stricken for that reason. The Court finds, however, that the truth of the plaintiffs' contention in this regard is a question of fact that may only be resolved after the current evidentiary hearing is completed. It follows that the Court cannot summarily strike the plaintiffs' Notice for lack of evidentiary support on the basis of the unsupported assertions in the defendants' motion alone.

The defendants' second argument is that the memorandum is shielded by the attorney-client privilege and thus should not be discoverable or subject to public release by the plaintiffs. Thus, the defendants claim, the memorandum, the plaintiffs' Notice (which recounts the content of the memorandum in some detail), and any other of the plaintiffs' filings referencing the content of the memorandum, should be stricken from the record in this case. The plaintiffs respond that the memorandum falls within the "fiduciary exception" to the attorney-client privilege. There is no need to address the applicability of the fiduciary exception, however, as the Court concludes that the defendants have failed, as a threshold matter, to demonstrate that any part of the memorandum is protected by the attorney-client privilege.


Federal Rule of Civil Procedure 12(f) provides, in relevant part, that "upon motion made by a party within 20 days of service of the pleading upon the party ..., the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). An allegation may be stricken as "scandalous" under this standard if it is found to be wholly lacking in evidentiary support. See, e.g., Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998) (striking as scandalous charges that an attorney "threatened Plaintiffs' counsel and family" for lack of evidentiary support); Pigford v. Veneman, 215 F.R.D. 2, 4--5 (D.D.C. 2003) (striking as scandalous accusations that attorney displayed a "racist attitude" as devoid of evidentiary foundation); In re Johnson, 236 B.R. 510, 523 (D.D.C. 1999) (striking as scandalous allegations that bankruptcy trustee was a "liar" because they were "so devoid of necessary evidence ... that they amount to little more than name-calling). Resolution of motions to strike lies firmly within the discretion of the Court, Cobell v. Norton, 2004 WL 2008937 at *1 (D.D.C.); and such motions are generally disfavored, being regarded as "time wasters." 2A MOORE'S FEDERAL PRACTICE § 12.21, at 2419. As such, motions to strike should be denied unless the movant can show either that there exists no evidence to support the allegations in question, or that "no evidence in support of the allegations would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976).

The plaintiffs' Notice alleges that the BIA Lotus Notes remote dial-up system "clandestinely enable[s] thousands of employees and contractors to reconnect to the Internet in direct violation of this Court's orders"; Pls.' Notice at 3; and that various Interior and DOJ personnel and officials participated or were complicit in the alleged violation. See, e.g., id. at 1--2. The defendants deny that the Court's Orders would be violated, insisting that the BIA Lotus Notes remote dial-up system neither constitutes an Internet connection nor requires any Internet connectivity in order to function. In support of this argument, the defendants cite only the memorandum itself, in which various offices conclude that the BIA Lotus Notes remote dial-up system would not violate this Court's Orders. See Defs.' Reply [2861] to Pls.' Opp. to Defs.' Mot. to Strike ("Defs.' Reply"), filed Mar. 3, 2005, at 2 (concluding that plaintiffs' failure to cite evidence for allegations in plaintiffs' Notice renders those allegations rebuttable by citation to the memorandum alone).

Unfortunately, the statements in the memorandum, which are unsworn and unverified, are not proper evidence to support the necessary factual predicate for the defendants' argument-that the BIA Lotus Notes remote dial-up system does not constitute a connection to the Internet within the meaning of this Court's Orders. No facts are recited in the memorandum in support of this conclusion, the memorandum ...

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