First, defendant argues, without support in the record, that the court's factual findings (beyond those addressed in Part II.A of this Opinion and Order) contained in its Opinion of January 14, 2009 are erroneous. Defendant alleges that “the Court relie[d] on Plaintiff's characterizations of the facts as an evidentiary basis for some of its findings.” Def.'s Memo. 8 n. 3. Specifically, defendant attacks the court's finding “that [d]efendant ‘substantially rearranged and co-mingled’ [p]laintiff's documents with those of other Tribes prior to sending them to the AIRR.” Id.
(citing Opinion of Jan. 14, 2009, dkt. no. 101 at 4). However, contrary to defendant's allegations, the court relied upon declarations contained within defendant's own briefing in support of its factual findings with regard to the transfer and storage of documents at the American Indian Records Repository (AIRR). See
Opinion of Jan. 14, 2009, dkt. no. 101 at 3–4. In addition to the court's citations relying on defendant's own declarations, the court also acknowledged portions of plaintiff's briefing which also relied on defendant's declarations. See, e.g.,
Opinion of Jan. 14, 2009, dkt. no. 101 at 4 (citing to Plaintiff's Reply in Support of Motion to Compel, dkt. no. 77, at 6, which in turn cites a November 14, 2008 Declaration of the Director of the Office of Trust Records stating that defendant's procedures do not require agency files to be separated by tribe, as support for the statement that plaintiff's documents “may well have ended up being shipped to the AIRR in the same boxes [as another tribe's documents]”). Defendant also questions the court's reliance on results from plaintiff's Box Index Search System (BISS) searches “as evidence that the BISS is ‘unwieldy and unhelpful.’ ” Def.'s Memo. 8 n. 3. However, defendant does not provide any support for its allegation that the court's reliance on the results of plaintiff's BISS searches is sufficient to find that the court's decision is “based on erroneous factual findings.” See
Def.'s Memo. 8 at n. 3 passim.
Moreover, the court notes that it relied on other evidence in addition to the results of plaintiff's BISS searches in order to support its factual findings. See
Opinion of Jan. 14, 2009, dkt. no. 101 at 6–7 (citing to defendant's own declarations describing the BISS system).