Joint Tribal Response Opposing Plaintiffs' Motion and Requesting A Protective Order
David J. Cummings
In the United States District Court for the District of Oregon
Joint Tribal Response Opposing Plaintiffs' Motion to Compel Production of Raw Computer Data and Requesting A Protective Order
The claimant tribes oppose the plaintiff scientists' motion to compel production of raw computer data and respectfully request the Court to issue a protective order to ensure that the plaintiffs' use of images and information contained in the Corps' administrative record is limited to use in this litigation. The Corps' decision to return these human remains to the claimant tribes, supported by an extensive administrative record expressly addressing the issues this Court has raised, recognizes the claimant tribes' interests in these remains and the images and information associated with these remains.
The United States has made the photographs, CT scans and x-rays that are part of the administrative record in this case available at the Burk Museum with appropriate access for the parties, as this Court has ordered. See October 25, 2000 Order. The plaintiff scientists have full access to the CT scan images, and may obtain reproductions of these images at a reasonable cost. Nevertheless, the plaintiffs are now seeking access to "raw computer data" from which these CT scans were produced so they can "replicate the scans." Plaintiffs' Motion to Compel Production of Raw Computer Data, at 2.
The plaintiffs are not merely requesting to receive information in the administrative record in an electronic format, nor are they merely requesting to obtain data that can only be used to produce the same CT images which the United States generated. Rather, the plaintiff scientists are demanding raw computer data, which can be used to create and generate an unlimited number of additional new CT images when used with the same proprietary scanning hardware and software that the United States employed. Federal Defendants' Response to Plaintiffs' Motion to Compel Production of Raw Data at 5 and accompanying Alotis Declaration at 6. Moreover, when used with other scanning hardware and software, the raw data may be used not only to create an unlimited number of additional new CT images but also to create and generate altered and distorted images. Federal Defendants' Response at 6 and accompanying Alotis Declaration at 6.
The plaintiff scientists' motion raises a much larger concern regarding the potential for the plaintiffs to use this litigation challenging the Corps' administrative record as a means to obtain, use, manipulate, and alter information for their own purposes and for distribution to the public which they are otherwise not entitled to, unless the plaintiffs prevail on their novel and yet-to-be established theory that they possess some "right" to study these human remains. Allowing the plaintiff scientists to use the information they acquire in this litigation for their own non-litigation purposes would amount to granting them part of the relief they are ultimately seeking in this case.
The claimant tribes' concerns regarding the use, manipulation, and alteration of information regarding these human remains are very real. Exploitation of information regarding these human remains has already occurred. From the tribes' perspective, this exploitation has caused enormous anguish and produced extremely disturbing and distasteful results. Affidavit of Horace Axtell at 6; Affidavit of William Yallup, Sr., at 7; Affidavit of Matthew Dick at 13. There is perhaps no more haunting and chilling image than the photograph appearing in newspapers around the world with the "reconstruction" of the facial features of these human remains that scientists concocted, and compared to "Star Trek" characters. Affidavit of Horace Axtell at 6 and Attachment A. Here, the raw data, if used to generate additional CT scans would allow a model to be constructed of the entire skeleton, which in turn could be reproduced and widely distributed.
It is perhaps impossible to overstate the sensitivity and cultural offensiveness of images of human remains to the claimant tribes. The claimant tribes believe that the deceased must be treated in a respectful manner, and in a manner that is not invasive or exploitative. Affidavit of Horace Axtell at 4-5; Affidavit of William Yallup, Sr., at 4-5; Affidavit of Matthew Dick, at 8, 10-11. Photographing, creating, reproducing, or publishing images of human remains is especially offensive to traditional and cultural beliefs of the claimant tribes. Affidavit of Horace Axtell at 5; Affidavit of William Yallup at 5-7; Affidavit of Matthew Dick at 8-13.
The tribes urged, and would have preferred, that the United States had not generated any images of these human remains, even though these images in the Corps' administrative record support disposition of these remains to the tribal claimants. Judicial review is limited to the existing administrative record, and may not include new images that the plaintiffs wish to create or re-create from raw computer data.
Therefore, given the Corps' well-supported decision to return these human remains to the claimant tribes and the recognition of the claimant tribes' interests in these remains and the images associated with these remains, the extreme sensitivity and cultural offensiveness of images of human remains to the claimant tribes, the potential for generation of an unlimited number of additional images from the raw computer data, the potential for manipulation of images, the exploitation of images that has already occurred, and the potential for further exploitation to occur, the claimant tribes respectfully request this Court to deny the plaintiff scientists' request and issue an protective order to ensure that the plaintiffs' use of images and information in the administrative record is limited to use in this litigation.
Dated this 24th day of January, 2001.
Tim Weaver, WSBA #3364
Daniel Hester, OSB #86122
Timothy Brewer, WSBA #17092
Thomas Zeilman, WSBA #28740
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