 |
Plaintiffs' Motion to Compel Production of Raw Data
Paula A. Barran, OSB No. 80397
e-mail: pbarran@barran.com
BARRAN LIEBMAN LLP
601 S.W. Second Avenue, Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212
Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, C. LORING BRACE; GEORGE W. GILL, C. VANCE
HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD
and D. GENTRY STEELE,
Plaintiffs,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL
PARK SERVICE, FRANCIS P. McMANAMON, ERNEST J. HARRELL, WILLIAM
E. BULEN, JR., DONALD R. CURTIS, LEE TURNER, LOUIS CALDERA, BRUCE
BABBITT, DONALD J. BARRY, CARL A. STROCK, and JOE N. BALLARD
Defendants.
Civil Case No. 96-1481-JE
MOTION TO COMPEL PRODUCTION OF RAW COMPUTER DATA
Plaintiffs ask the Court for an order directing the federal defendants
to provide them with an electronic copy of the raw computer data
from which the CT scan images of the Kennewick Man skeleton were
produced as part of defendants' studies of the skeleton. As
the Court directed, plaintiffs have attempted to obtain this
data from defendants so that on their own and at their own expense
plaintiffs could replicate the scans (which are part of the administrative
record on this case). Earlier in the case, defendants seemed
willing to permit plaintiffs to have these data, but have now
refused because they believe it "unnecessary and unwise"
to let plaintiffs have the data, and because the data are "sensitive."
Plaintiffs therefore ask the Court to direct defendants to produce
the raw electronic data for the CT scans.
1. Plaintiffs' requests for the CT data.
Plaintiffs have made many attempts to obtain, initially, copies
of the x-rays and CT scans, and then later the CT scan raw data.
Before the most recent change of counsel it appeared there would
be no objection to providing this information. The discussions
between counsel concerning these matters are set out in the correspondence
filed with this motion (Schneider Affidavit). Summarized, they
included some eleven letters back and forth, as well as Ms. Bevan's
comments in court:
· January 13, 2000 letter to Allison Rumsey requesting
copies of the x-rays and CT scans;
· February 9, 2000 letter from Allison Rumsey advising
that defendants "will be in contact" about the result
of discussions about copying the x-rays and CT scans;
· February 24, 2000 letter from Allison Rumsey stating
"I am happy to provide copies of these to you" provided
plaintiffs agreed not to disclose them until the administrative
record was filed and plaintiffs paid for reproduction;
· February 29, 2000 letter to Allison Rumsey noting that
the copy cost appeared unreasonable and asking for an explanation
of the non-disclosure demand;
· March 8, 2000 letter from Allison Rumsey clarifying
that federal defendants "are happy to have made the copies
of the CT scans" but asking plaintiffs to pay the reproduction
costs;
· March 27, 2000 letter from Allison Rumsey stating that
defendants will provide copies of the originals at plaintiffs'
cost, and requesting they be kept confidential only until made
public in the administrative record but confirming "you
would not be bound into eternity";
· April 13, 2000 letter to Allison Rumsey asking whether
it would be possible to obtain the raw data, which would be cheaper
to reproduce and easier to send;
· October 25, 2000 status conference in open court in
which Ms. Bevan explained that "we need to talk to our clients
about the possibility of providing that information," (despite
the discussions which Ms. Rumsey had already apparently had);
· November 20, 2000 letter to Ms. Bevan to ask when defendants
would respond to plaintiffs' requests for the new computer data;
· December 5, 2000 letter from Ms. Bevan declining to
respond and instead asking about the origin of a scan attached
to a non-party affidavit filed with a 1999 status report;
· December 7, 2000 letter to Ms. Bevan explaining the
origin of the filed scan copy, reminding her that others were
provided private copies to use in research, and explaining that
since copies had not been given to plaintiffs they were requests
for the raw data;
· December 20, 2000 letter from Ms. Bevan stating that
plaintiffs had "appropriate" access to the CT scans
if they traveled to Seattle, and that it would be "unnecessary
and unwise" to provide the raw data to plaintiffs, but offering
no explanation for defendants' change in position from earlier
representations that they would "be happy" to provide
copies.
Plaintiffs now ask the Court to order defendants to provide them
the raw computer data. The CT scans, and the data from which
they were generated, are part of the administrative record which
plaintiffs are entitled by law to review. Moreover, the explanation
defendants offered for keeping the photographs at the Burke (the
vast expense of making copies) is not sufficient here, where
data need only be downloaded or transmitted electronically.
Plaintiffs note 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.
Directing an electronic production of raw data would be an appropriate
way of providing plaintiffs with this portion of the administrative
record. It is simply improper for defendants to deem it "unwise"
to restrict plaintiffs' access to a portion of the record which
is at the heart of this litigation. As the Court can see from
the correspondence, this is the first time that defendants have
deemed it improper for plaintiffs to access to this information.
Instead, for several months defendants acted as though they
had no objection.
Plaintiffs also ask that the Court impose a deadline so that
they can be assured of having the raw computer data in time to
carry out a meaningful review before their initial written arguments
are due to the Court.
RESPECTFULLY SUBMITTED this 9th day of January, 2001.
ALAN L. SCHNEIDER
By ____________________________________
Alan L. Schneider, OSB No. 68147
BARRAN LIEBMAN LLP
By____________________________________
Paula A. Barran, OSB No. 80397
Of Attorneys for Plaintiffs
Return to Communications with the Court
|
|
