Federal Defendants' Response to Plaintiffs' Motion
FOR THE DISTRICT OF OREGON
ROBSON BONNICHES, et al., Plaintiffs
UNITED STATES OF AMERICA, et al., Defendants
Federal Defendants' Response to Plaintiffs' Motion to Compel Production of Raw Computer Data
Federal defendants hereby respond to plaintiffs' motion seeking an order directing federal defendants to provide plaintiffs with a copy of the electronic data used to generate the CT scan images of the human remains (1). For the following reasons, plaintiffs' motion should be denied.
A computerized tomograph or CT scan, is a diagnostic procedure used to produce a series of cross-section images of internal body parts. See Declaration of Michael A. Alotis at 3, attached as Attachment 1. (2) The key component of a CT scan machine is a computer that receives the data from a rotating x-ray beam, reproduces an image onto a video display from the data, and prints the image onto film. Id. Additional images can be generated by manipulating the data received by the CT scan computer and printing a new film. Id. At 6.
On February 28, 1999, CT scans were taken of selected portions of the human remains at the University of Washington as part of federal defendants' initial detailed documentation and examination of the remains for purposes of determining if the remains were "Native American" under NAGPRA. Printed CT scan images as well as the electronic data used to generate the CT scan images, which are contained on two DAT tapes, were placed in the archives at the Burke Museum. Some of the CT scan images were subsequently loaned to experts retained by the Department of the Interior to assist in the cultural affiliation and Native American determinations. These copies were returned to the archives following completion of the experts' research. The raw electronic data on the DAT tapes were not viewed or utilized by federal defendants or any of the experts retained by federal defendants.
Plaintiffs' motion, and its summary of the letter exchange between counsel, confuses plaintiffs' request for copies of CT scan images with plaintiffs request for a copy of the electronic data used to generate the CT scan images. These are two distinctly different requests. As shown by the letters attached to plaintiffs' motion, plaintiffs initially sought copies of the CT scan images. See letter attached as Appendix A to Motion to Compel Production of Raw Computer Data (hereinafter "Motion to Compel"). Federal defendants agreed to provide not to disclose the images until they were made public. See letters attached as Appendix B, C, D, E, & F to Motion to Compel. Plaintiffs declined federal defendants' offer and, instead, sought a copy of the electronic data used to create the CT scan images, purportedly to print their own copies of the CT scan images at a lower cost. See letters attached as Appendix E. F. & G to Motion to Compel. After thorough consideration of plaintiffs' request, federal defendants determined that providing a copy of the electronic data was unnecessary because plaintiffs currently have access to the printed CT images and was unwise because allowing plaintiffs to print their own images from the electronic data could present serious authentication issues and would be detrimental to the interests of the claimant tribes. See letters attached as Appendix H, I, J, & K to Motion to Compel.
First, federal defendants have provided appropriate access to the CT scan images and the DAT tapes at the Burke Museum.(3) Federal defendants are required to make the administrative record available to a party for inspection. Federal defendants are not, however, required to provide a copy of all materials in the administrative record to a party. The United States frequently fulfills its obligation to make the record available rather than providing each party with a copy of the administrative record. In this case, for the convenience of the parties, the United States provided each party with a copy of the complete administrative record with the exception of the photographic materials housed in the archives at the Burke Museum. Due to the cost of copying the photographs, CT scans, and x-rays contained in the archives at the Burke Museum as well as the sensitivity of these materials to the coalition of claimant tribes, federal defendants proposed, and the Court ordered, that these materials remain at the Burke Museum with appropriate access provided to plaintiffs. See October 25, 2000 Order.
Federal defendants have fully accommodated plaintiffs' requests for access to the materials at the Burke Museum.(4) Furthermore, in addition to access to these materials at the Burke Museum, it appears that plaintiffs currently possess, or have immediate access to, at least some of the CT scan images (5). See Plaintiffs October 1, 1999 Status Report (attaching a copy of one of the CT scan images taken of the Kennewick remains during federal defendants' February 28, 1999 examination of the remains). Federal defendants have met their obligation to provide access to the materials in the administrative record, including the DAT tapes and the CT scan images.
Second, there is no reason to believe that plaintiffs can have images printed from the DAT tapes at less cost than federal defendants. The University of Washington used a GE proprietary scanning hardware and software system to create the CT scan images and record the data on the DAT tapes. See Alotis Declaration at 4. Additional CT scan images can only be made from the DAT tapes by a facility utilizing the same GE proprietary scanning hardware and software system. Id. At 5. Consequently, the plaintiffs, like federal defendants, will have to take the DAT tapes to a facility with the same GE proprietary hardware and software in order to have CT scan images printed form the tapes.
Third, electronic data can be manipulated and altered. Within the GE system, the electronic data can be manipulated to print images other than those in the administrative record. See Alotis Declaration 6. Any images other than the ones printed by the University of Washington as part of federal defendants' February 1999 physical exam are not properly part of the administrative record. See e.g., Florida Power and Light Co v. Lorion, 470 U.S. 729, 743 (1985) (holding that under the Administrative Procedure Act, a court's review is limited to the administrative record that was before the agency decision maker at the time the challenged decision was made). Furthermore, outside the GE system, the data potentially can be manipulated to print inaccurate images of the remains. See Alotis Declaration at 6. As a result, federal defendants have serious concerns about the ability to authenticate any images generated by plaintiffs from the electronic data.
Fourth, the coalition of tribal claimants, who the Secretary of the Interior has determined is the proper claimant of the remains under NAGPRA, has indicated that unlimited and exploitative reproduction of images of the human remains is culturally offensive (6). The concerns expressed by the coalition of tribal claimants regarding the reproduction of images of the human remains are heightened by the request for electronic data from which unlimited copies of the images may be generated. Plaintiffs argue that 'defendants have already posted a number of their scientific reports on a public website, where the whole world can read what the government thinks and has observed about Kennewick Man. There is no reason the scans are any more sensitive or secret." Motion to Compel at p. 4. To the tribal claimants, however, there is a substantial distinction between unlimited reproduction of images of the human remains and written reports and conclusions about the remains.(7)
Federal defendants strongly believe they have provided plaintiffs with appropriate access to the administrative record, including the CT scan images and DAT tapes. Notably, plaintiffs have not alleged that access to these materials at the Burke Museum is insufficient to prepare their case; rather, plaintiffs have simply asserted that it would be more convenient to have the electronic data so they can print their own copies of the CT scans. If, however, the Court determines, contrary to its previous order, that providing access to these materials at the Burke Museum is not sufficient, federal defendants remain willing to provide copies of the CT scan images to plaintiffs if plaintiffs agree to pay for the costs of the copies. (8) Due to the sensitivity of these images to the Native American claimants, however, federal defendants respectfully request that the Court consider conditioning provision of these materials on the signing of a confidentiality agreement requiring that the CT scans be used solely for purposes of this litigation.
For the above reasons, Federal Defendants respectfully request that Plaintiffs' Motion to Compel Production of Raw Computer Data be denied.
Dated this 22 day of January, 2001.
Kristine Olson, OSB 73254
(signed) Timothy W. Simmons
(attachments will be posted when they become available)
(1) Plaintiffs incorrectly caption their filing as a "Motion to Compel Production of Raw Computer Data." Plaintiffs have not made a discovery request for the raw computer data therefore there is not basis for a motion to compel production of the data. Indeed, as an Administrative Procecure Act record review case, there is a strong presumption against discovery. back
(2) Due to time constraints, a facsimile copy of Michael A. Alotis declaration is filed at this time. As soon as the original is received, it will be filed with the Court. back
(3) Although the Burke Museum does not have the necessary equipment to view the DAT tapes, federal defendants can arrange for plaintiffs to view the tapes at the University of Washington radiology center, which is easily accessible from the Burke back Museum.
(4) Plaintiffs have requested access to the materials at the Burke Museum on April 2 and 3, 2001. See January 8, 2001 letter from Alan L. Schneider, attached as Attachment 2. Federal defendants have agreed to arrange access on these dates. See January 19, 2001 letter from Aimee Bevan, attached as Attachment 3. back
(5) Notably, when directly asked by federal defendants, plaintiffs specifically denied having access to the electronic data but did not deny that they currently have immediate access to the CT scan images made by federal defendants during the February 28, 1999 examination. See letter dated December 5, 2000 frm A. Bevan to A. Schneider and P. Barran ("Please explain how plaintiffs obtained a copy of the CT scan it submitted with its October 1, 1999 status report and clarify if plaintiffs currently possess, or have immediate access to, the electronic data or other images made by federal defendants during the February 28, 1999 examination.") and letter dated December 7, 2000 from P. Barran to A. Bevan ("Plaintiffs do not have access to the electronic data..."). back
(6) Federal defendants consider the tribal claimants' interests and sensitivities, in part, because the Court, in denying the Yakama Nation's motion to intervene, found that the United States was adequately considering and representing the tribes' interests in this matter. August 3, 2000 Order. back
(7) Counsel for the claimant tribes have indicated that the tribes intend to submit materials to the Court later this week explaining the offensiveness of images of the human remains. back
(8) Copies of the CT scans can be made for approximately $5 to $8
apiece. See March 27, 2000 letter from A. Rumsey to A. Schneider,
attached as Appendix F to Motion to Compel. back
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