Rohrbough v. Harris

FILED
United States Court of Appeals
Tenth Circuit

December 15, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN E. ROHRBOUGH; SUSAN A.
PETRONE, individually and as
personal representatives of the estate
of Daniel Rohrbough, deceased;
DAWN L. ANNA, individually and as
personal representative of the estate of
Lauren D. Townsend, deceased,

Plaintiffs - Appellants,

v. No. 07-1186 and 07-1202
WAYNE N. HARRIS; KATHERINE
ANN HARRIS; THOMAS E.
KLEBOLD; SUSAN KLEBOLD,

Defendants - Appellees.

______________________

STATES OF ARKANSAS,
COLORADO, FLORIDA,
MARYLAND, MISSISSIPPI, NEW
HAMPSHIRE, NEW MEXICO,
NORTH DAKOTA, VIRGINIA,
WEST VIRGINIA, WYOMING, AND
SOUTH CAROLINA,

Amici Curiae.

______________________________

MARK A. TAYLOR,

Plaintiff - Appellant,
 v.

SLOVAY PHARMACEUTICALS,
INC.,

Defendant.

_____________________

WAYNE N. HARRIS; KATHERINE
ANN HARRIS,

Intervenors - Appellees.

_____________________

STATES OF ARKANSAS,
COLORADO, FLORIDA,
MARYLAND, MISSISSIPPI, NEW
HAMPSHIRE, NEW MEXICO,
NORTH DAKOTA, WEST
VIRGINIA, WYOMING, SOUTH
CAROLINA,

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:00-CV-808-LTB-PAC)

Barry K. Arrington, Arrington & Associates, P.a., Arvada, Colorado, and
A. Bruce Jones (Anthony J. Navarro, with him on the briefs), of Holland & Hart,
LLP, Denver, Colorado, for Plaintiffs - Appellants, Bryan E. Rohrbough, et al.
and Mark A. Taylor.

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C. Michael Montgomery (Erica O. Payne, with him on the briefs), of
Montgomery, Kolodny, Amatuzio & Dusbabek, LLP, Denver, Colorado, for
Defendants - Appellees Wayne N. Harris, et al. and Intervenors - Appellees
Wayne N. Harris, et al.

Elizabeth H. McCann, Deputy Attorney General (John W. Suthers, Attorney
General of Colorado, Daniel D. Domenico, Solicitor General of Colorado,
William Allen and Megan Rundlet, Assistant Attorneys General, with her on the
briefs), Denver, Colorado, for Amici Curiae.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

In these consolidated appeals we address the fate of several depositions

taken in two civil cases in the United States District Court for the District of

Colorado. Both cases arose out of the 1999 shootings at Columbine High School.

We are asked to determine whether the district court erred in (1) finding that the

depositions constitute records subject to the requirements of the Federal Records

Act and (2) declining to lift the protective orders covering the depositions to

allow an expert in youth violence to review them. We affirm the district court on

both issues.

I. BACKGROUND

These appeals follow the settlement of two civil cases brought in the wake

of the Columbine school shootings. In the first case, Rohrbough v. Harris,

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parents of two of the murdered students (the Rohrbough plaintiffs) 1 sued the

parents of the two shooters, Eric Harris and Dylan Klebold. In the second case,

Taylor v. Solvay Pharmaceuticals, Mark Allen Taylor—a student who was

seriously injured in the shootings—sued the drug company that had manufactured

a drug allegedly taken by Harris before the shootings. Most of the discovery

materials for both Rohrbough and Taylor were kept in a locked room at the

federal courthouse (called the Evidence Room) under the supervision of a special

master.

A series of protective orders in each case restricted access to and disclosure

of discovery materials. Under the orders, evidence was to be produced by

depositing it with the special master. If a deposition required the use of any of

the protected documents, it was to be taken in the Evidence Room with the special

master present. All the depositions at issue in this case were taken in this

manner.

Both cases settled at an early stage. Before they settled, the depositions of

Mr. and Mrs. Harris were taken in Taylor, and depositions of the Harrises and

Mr. and Mrs. Klebold were taken in Rohrbough. Because Rohrbough settled

shortly after the depositions of the Harrises and Klebolds were taken in that case,

those depositions were never signed. In neither case were the depositions ever

used in conjunction with any motion or filed with the district court. After the

1
There were also other plaintiffs but they are not parties to this appeal.

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settlements the magistrate judge entered an order covering both cases—the

Evidence Room Order—to govern disposal of the discovery materials. The order

stated that many of the materials in the Evidence Room, including the deposition

transcripts and court-reporter notes, would be “disposed of” by the court. Taylor

App. at 64, 68. Both the Rohrbough plaintiffs and Taylor objected to the order.

The district court consolidated the two cases for consideration of the objections.

The objections opposed destruction of the Evidence Room materials

because, among other reasons, they are of historical importance and other litigants

might seek access to them. The Harrises, who were granted permission to

intervene in Taylor, submitted a response in support of the Evidence Room Order,

a position later joined by the Klebolds. The Colorado Attorney General filed a

motion to intervene in the cases to object to destruction of the materials; the

district court denied this motion but allowed the attorney general to proceed as an

amicus curiae. The National Archives and Records Administration (NARA) also

participated as an amicus, asserting that the Federal Records Act (FRA) likely

prohibited the destruction of some of the materials covered by the Evidence Room

Order.

At its hearing on the matter the district court proposed to transfer the

materials in the Evidence Room to NARA, subject to a 25-year sealing order, and

requested that the interested parties submit their views on the proposal. In their

responses the parties and amici adopted the following positions: Neither the

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Harrises nor the Klebolds believed the materials to be covered by the FRA; but

the Harrises did not oppose the transfer to NARA so long as the confidentiality

provisions of the protective order remained in effect, whereas the Klebolds

preferred that the materials be destroyed. The Rohrbough plaintiffs opposed the

transfer to NARA and sought a return to the “status quo” before the Evidence

Room Order. The Colorado Attorney General requested that an expert in youth

violence, Dr. Delbert S. Elliott, be permitted to review the depositions. The

attorney general attached an affidavit from Dr. Elliott describing the study to be

conducted and stating that the depositions could be helpful in assessing the

impact of family life on the perpetrators’ social, psychological, and moral

development. Taylor supported the attorney general’s request. Taylor did not

oppose transferring the records to NARA, but he did object to placing a seal on

them for 25 years.

After reading the depositions the district court determined that they were

materials subject to the FRA and that they should be transferred to NARA for

storage. The court also ordered that the depositions be kept under seal for 20

years. In reaching this conclusion, the court weighed the concerns counseling

against disclosure of the depositions—including the risk that release of details

about the shootings could trigger copycat incidents, the privacy interests of the

parties and of nonparties mentioned in the depositions, and the reliance of the

parties on the protective orders—against the public interest in using the materials

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in the hope of preventing similar tragedies in the future. The court concluded that

the balance of interests favored confidentiality and accordingly declined to allow

Dr. Elliott access to the records. Taylor and the Rohrbough plaintiffs both appeal

the order. Taylor challenges only the denial of Dr. Elloitt’s access to the records,

and the Rohrbough plaintiffs challenge only the determination that the depositions

are subject to the FRA.

II. DISCUSSION

A. Federal Records Act

The Rohrbough plaintiffs consider the depositions that they took to be their

property and wish to retain custody of them. Because the depositions were never

signed, the special master’s protocol for depositions did not allow counsel to

make copies of the depositions, so the transcripts and the court-reporter notes and

backup files held in the Evidence Room are the only ones in existence. The

Rohrbough plaintiffs argue that the district court erred in ruling that the

depositions are “records” under the FRA and that the district court therefore had

no authority to transfer them to NARA. The Harrises and Klebolds take no

position on whether the depositions are “records” under the FRA but do not

oppose their transfer to NARA under seal. The district court’s application of the

FRA to the depositions is a mixed question of law and fact, but there are no

disputed historical facts, so our review is de novo. See Scanlon White, Inc. v.

Comm’r, 472 F.3d 1173, 1175 (10th Cir. 2006).

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 The FRA 2 governs the management, retention, and disposal of federal

records. See 44 U.S.C. chs. 21, 25, 29, 31, 33. NARA has primary authority

over the management of federal records under the FRA and is authorized to

promulgate regulations regarding records management. See, e.g., id. § 2904(a)

(“The Archivist [of the United States, see id. § 2901(15), who administers NARA,

see id. § 2102] shall provide guidance and assistance to Federal agencies with

respect to . . . ensuring proper records disposition”); id. § 2904(c) (the Archivist,

together with the Administrator of General Services, shall “have the

responsibility—(1) to promulgate standards, procedures, and guidelines with

respect to records management . . . .”); id. § 2905(a) (“The Archivist shall

establish standards for the selective retention of records of continuing value . . .

.”); id. § 3302 (“The Archivist shall promulgate regulations . . . establishing . . .

(1) procedures for the compiling and submitting to him of lists and schedules of

records proposed for disposal [and] (2) procedures for the disposal of records

authorized for disposal . . . .”); Am. Friends Serv. Comm. v. Webster, 720 F.2d 29,

62 (D.C. Cir. 1983) (“Congress clearly intended to transfer final approval

authority over the disposal of records to [NARA]”); see also 44 U.S.C. §§ 2908,

2909; 3303a(d) (additional authority to promulgate regulations). Materials

2
As the D.C. Circuit noted in Armstrong v. Bush, 924 F.2d 282, 284 n.1
(D.C. Cir. 1991), “The FRA is actually a series of statutes, which originated with
the Federal Records Act of 1950, ch. 849, 64 Stat. 583, and the 1943 Disposal of
Records Act, ch. 192, 57 Stat. 380.” We will refer to the original acts and the
amendments collectively as the FRA, as does NARA.

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covered by the FRA must be maintained and (if appropriate) disposed of

according to a schedule created by the originating agency and approved by

NARA. See id. §§ 3303, 3314.

The FRA provides the following definition of the term records:

As used in [chapter 33], “records” includes all books, papers, maps,
photographs, machine readable materials, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under
Federal law or in connection with the transaction of public business
and preserved or appropriate for preservation by that agency or its
legitimate successor as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of the
Government or because of the informational value of data in them.

44 U.S.C. § 3301. (This definition also applies in chapters 21, 25, 29 and 31. See

id. § 2901(1)). The FRA defines “federal agency”—a term we take to be

synonymous with the term “agency of the United States Government” in

§ 3301—as “any executive agency or any establishment in the legislative or

judicial branch of the Government (except the Supreme Court, the Senate, the

House of Representatives, and the Architect of the Capitol and any activities

under the direction of the Architect of the Capitol).” Id. § 2901(14). District

courts are therefore “agencies” under the FRA.

To simplify, the depositions in this case qualify as records if they were (1)

made or received by the court, and (2) preserved by the court or appropriate for

preservation because they are evidence of government performance or because

they contain other information of value. The Rohrbough plaintiffs do not dispute

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that the second requirement is met. As for the first requirement, the depositions

were clearly not “made” by the court. That leaves the question whether the

depositions were “received” by the court within the meaning of the statute.

There are no court decisions on this point, but NARA has promulgated a

regulation defining what it means for material to be “received”:

Received means the acceptance or collection of documentary
materials by agency personnel in the course of their official duties
regardless of their origin (for example, other units of their agency,
private citizens, public officials, other agencies, contractors,
Government grantees) and regardless of how transmitted (in person
or by messenger, mail, electronic means, or by any other method).

36 C.F.R. § 1222.12(b)(4) (emphasis added). The Rohrbough plaintiffs do not

challenge the NARA regulation’s interpretation of the FRA. Rather, they contend

that no “agency personnel” ever accepted or collected the deposition transcripts.

The term “agency personnel” is undefined in the regulations. Undoubtedly,

employees of the clerk’s office would be “agency personnel” of a district court.

Thus, documents filed with the clerk’s office would be documents “[r]eceived . . .

by agency personnel.” Depositions, however, are not automatically filed with the

court. Rule 5(d)(1) of the Federal Rules of Civil Procedure provides that

depositions “must not be filed until they are used in the proceeding or the court

orders filing.” As the district court stated, the depositions at issue in this appeal

were never “admitted as evidence nor cited, under seal or otherwise, in any

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proceeding or pleading in either case.” Taylor App. at 289. Consequently, they

were never filed with the clerk of court, who thus never “received” them.

Likewise, we think it clear that district court “agency personnel” includes

the judges of the court. If a judge makes a decision based on materials presented

to him or her, even if the materials are not formally filed, they could be said to be

“accepted” by agency personnel. In this case, however, it is undisputed that the

judge never considered any of the depositions in rendering any decision before

the dispute regarding disposal of the depositions.

Nevertheless, the depositions were required to be deposited with the special

master, and he maintained custody over them (he was the only person with a key

to the Evidence Room, and his presence was required for any inspection of

materials produced under the protective order). The question then is whether the

special master should be considered court personnel. We hold that he should. A

special master occupies a special place in court proceedings, as indicated by

Federal Rule of Civil Procedure 53, which governs in some detail the appointment

and authority of special masters. The special master is more than an advisor or

facilitator for the court. In the cases below, for example, he was granted all the

powers provided by Rule 53. In particular, empowered to “address pretrial . . .

matters that cannot be effectively and timely addressed by an available district

judge or magistrate judge of the district,” Fed. R. Civ. P. 53(a)(1)(C), he was

directed to rule on all discovery disputes in both cases. He was present when the

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depositions were taken, and he made contemporaneous rulings on objections. His

presence at depositions made it unnecessary for the parties to raise objections

concerning the depositions with the magistrate judge or the district court, which

would normally require submitting partial transcripts, rendering them “received”

by the court. Indeed, in resolving disputes between the parties, he performed

judicial functions. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435–36

(1993) (a quintessential characteristic of judging is the “performance of the

function of resolving disputes between parties, or of authoritatively adjudicating

private rights.” (internal quotation marks omitted)). In short, the special master

was so intimately an arm of the court that he should be considered “agency

personnel” for the purposes of the FRA. Because the depositions were deposited

with him, they were “received” by the district court and are therefore records

covered by the FRA.

The dissent raises several arguments not presented by the Rohrbough

plaintiffs on appeal. The arguments are interesting ones but they do not persuade

us to reverse.

First, the dissent faults us for relying on the definition of records in 44

U.S.C. § 3301 even though the record-preservation duty imposed on federal

agencies by 44 U.S.C. § 3101 does not encompass everything defined as a record

in § 3301. In particular, it points out that § 3101 requires agencies to “make and

preserve” records “containing adequate and proper documentation of the

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organization, functions, policies, decisions, procedures, and essential transactions

of the agency and designed to furnish the information necessary to protect the

legal and financial rights of the Government and of persons directly affected by

the agency’s activities.” Absent from § 3101 is any mention of those

documentary materials that are records under § 3301 only “because of the

informational value of data in them.” In other words, there is no record-

preservation duty under § 3101 with respect to those documentary materials that

are defined as records only because of their informational value.

This argument might be compelling if § 3101 were intended to establish the

sole record-preservation duties of federal agencies. But that is not the intent of

the section. Its clear purpose is to ensure that agencies make adequate records

documenting its operations. It also mandates, quite naturally, that the agencies

then retain those records (else making them would be of little consequence). It

does not say, however, that if an agency makes other records or receives records

that do not document agency operations, then the agency is free to dispose of

them as it will. Nor can we read § 3101 to imply such a limit on an agency’s

preservation responsibilities. That implication would contradict the express

language of 44 U.S.C. § 3314, which states that “[t]he procedures described by

[chapter 33, which does not include § 3101] are exclusive, and records of the

United States Government may not be alienated or destroyed except under

[chapter 33].” When chapter 33, entitled “Disposal of Records,” imposes duties

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with respect to records, it undoubtedly refers to all records defined by § 3301 of

that chapter, not just the subset described in § 3101.

Moreover, we would be inclined to say that the depositions in this case

come within the category of records described by § 3101. If the special master

had been merely a custodian or guardian of the depositions, we might agree that

they do not. But all the depositions were taken in his presence and he ruled on

objections as they arose. If the depositions had been taken before a judge, there

would be little doubt that they would document the “decisions, procedures, and

essential transactions of the [court].” § 3101. When this role is delegated to

special masters, who, as the dissent agrees, are “agency personnel,” the same

conclusion would seem to follow.

The dissent’s second issue is that our opinion “interprets the FRA as

throwing a wrench into discovery practice.” Op. (Lucero, J. dissenting) at 15. It

argues: “Today’s decision potentially exposes any discovery deposited with a

special master to public inspection. I cannot read a vague, broadly-worded statute

directed toward public agencies as having such a profound effect.” Id. at 15–16.

But as the dissent apparently concedes, id. at 19–20, filed depositions are

“records” subject to the records disposition schedule for the judiciary, see Guide

to Judiciary Policies and Procedures, Vol. 13, ch. 17: Records Disposition

Program and Records Disposition Schedules (2003) (“Judiciary Records

Schedule”). And before 1980, which was well after the FRA took its present

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form, all depositions had to be filed. See, e.g., Fed. R. Civ. P. 30(f) (1970)

(“[The officer before whom the deposition was taken] shall then securely seal the

deposition in an envelope indorsed with the title of the action . . . and shall

promptly file it with the court . . . .”); Fed.R. Civ. P. 30 advisory committee’s

note to 1980 amendment of Rule 30(f)(1); Fed. R. Civ. P. 5 advisory committee’s

note to 1980 amendment of Rule 5(d). Given that every deposition in a federal

suit was a record subject to the FRA before 1980, it should not be cause for great

concern about the impact on discovery if some depositions still are. We also note

that even for depositions taken after 1980, even when they are governed by a

protective order, they certainly become records under the FRA when they are used

at a trial or in a filed pleading; so no party can be totally confident that a

deposition will not ultimately become such a record.

Finally, the dissent suggests that NARA and the Judicial Conference of the

United States have indicated that depositions not filed or used by a judge are not

governed by the FRA. We disagree. NARA’s district-court brief did say that a

deposition quoted or cited in a motion would be a record under the FRA; but it

made clear that this was only one potential ground for its being a record. NARA

expressed no opinion on whether special masters can be court personnel or on the

consequences that might follow from that categorization. And it is hardly clear

that the Judicial Conference retention schedule does not encompass the

depositions in this case. That schedule includes “records resulting from the

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docketing and processing of a case in a court that pertains to that particular case.”

Judiciary Records Schedule § 15(a). This phrase could be interpreted to include

an unfiled deposition that is otherwise a record. In any event, it would not be at

all surprising if some unusual circumstances, such as those in this case, had been

overlooked when the schedule was prepared. The regulations promulgated by

NARA contemplate that records will be scheduled in stages. See 36 C.F.R.

§ 1228.22 (“Ultimately, all records of an agency must be scheduled, but they need

not all be scheduled at the same time. An agency may schedule the records of

one function, program or organizational element at a time.”). If a category of

records is overlooked in an agency’s schedule, that category need not be

deformed to fit into an established category. The regulations recognize the

possibility that a record that is appropriate for preservation may not be addressed

in existing agency manuals. See id. § 1222-12(b)(6) (“Appropriate for

preservation means documentary materials made or received which in the

judgment of the agency should be filed, stored, or otherwise systematically

maintained by an agency because of the evidence of agency activities or

information they contain, even though the materials may not be covered by its

current filing or maintenance procedures.”(emphasis added)). In such a

circumstance, determination of whether a document is a “record” under the FRA

must be based on the language of the governing statute and regulations, without

assistance from the agency’s schedules.

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 B. Modification of Protective Order

Although the district court ordered that physical custody of the depositions

be transferred to NARA, it continued to restrict access to them under its prior

protective orders for 20 years. NARA informed the district court that its practice

is to allow the originating agency to determine access to the records while the

agency retains legal (but not physical) custody of the records, which the court

stated that it would do for 20 years. Taylor appeals the court’s decision not to

modify the protective orders that applied to the depositions. He contends that the

court erred in finding that the interests favoring continued confidentiality

outweighed the public’s interest in the requested access to the depositions.

The modification of a protective order, like its original entry, is left to the

sound discretion of the district court. See United Nuclear Corp. v. Cranford Ins.

Co., 905 F.2d 1424, 1427 (10th Cir. 1990). Under Federal Rule of Civil

Procedure 26(c), for “good cause” a court may issue a protective order regarding

discovery “to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” Such an order may forbid the

disclosure of discovery, see Fed. R. Civ. P. 26(c)(1)(A), and require that

depositions be sealed and opened only upon court order, see id. Rule 26(c)(1)(F).

The “good cause” standard of Rule 26(c) is “highly flexible, having been

designed to accommodate all relevant interests as they arise.” United States v.

Microsoft Corp., 165 F.3d 952, 959 (D.C. Cir. 1999).

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 We are unable to review the district court’s exercise of discretion, however,

because the appellants have not provided us with the deposition transcripts that

the court reviewed and relied on. Without these materials, we cannot properly

evaluate certain factors, such as the presence of information that might encourage

copycat incidents, whether the divulgence of the contents of the depositions

would subject the Harrises and Klebolds to embarrassment or oppression, the

extent to which the deposition testimony might have been given in reliance on the

protective orders, or even the potential research interest of the testimony. “A

party who seeks to reverse the decision of a district court must provide an

adequate record for this court to determine that error was committed.” Travelers

Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118, 1119 (10th Cir. 2003); see

also 10th Cir. R. 10.3(A)–(B) (“Counsel must designate a record on appeal that is

sufficient for considering and deciding the appellate issues,” and “[t]he court need

not remedy any failure by counsel to designate an adequate record.”). We

recognize that the record on appeal consists of “(1) the original papers and

exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3)

a certified copy of the docket entries prepared by the district clerk,” Fed. R. App.

P. 10, and that the depositions were never filed below. Nevertheless, knowing

that the district court had considered the contents of the depositions in deciding

whether to modify the protective order, Taylor should have moved the district

court to include the sealed depositions in the court record, so that we could

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properly review the court’s decision. 3 Id. at 10(e); see also United States v.

Andiarena, 823 F.2d 673, 677 (1st Cir. 1987) (granting motion to supplement

record to include evidence considered by jury); see generally Gregory A.

Castanias & Robert H. Klonoff, Federal Appellate Practice and Procedure in a

Nutshell §§ 3.4 (Extra-Record Facts), 9.1 (Composition and Supplementation of

the Record on Appeal) (2008). Without those materials, we are obliged to affirm.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

3
We note that Taylor, who is not a party to the Rohrbough case, has not
moved to intervene in that case. The appropriate method for a third party to
challenge a protective order is to intervene in the case. See United Nuclear
Corp., 905 F.2d at 1427. But in light of the inadequacy of the record, we need
not decide whether this procedural flaw would be fatal to Taylor’s appeal.

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07-1186 and 07-1202, Rohrbough v. Harris and Taylor v. Slovay Pharmaceuticals,

Inc.

LUCERO, J., dissenting.

I agree with my respected colleagues that special masters are “agency

personnel” under the Federal Records Act (“FRA” or “Act”). But I disagree that

unfiled depositions taken in private litigation fall within the ambit of the FRA.

Neither Congress, the National Archives and Records Administration (“NARA”),

nor the Administrative Office of the United States Courts understand the FRA to

direct federal courts to transfer any discovery documents deposited with a special

master to the National Archives. The majority’s decision is contrary to the clear

meaning of the FRA and, under the facts of this case, contrary to the expectations

of parties litigating under the Federal Rules of Civil Procedure. Thus, I must

respectfully dissent.

The FRA directs federal agencies to preserve records that document their

“organization, functions, policies, decisions, procedures, and essential

transactions.” 44 U.S.C. § 3101. By doing so, agencies “document[] . . . the

policies and transactions of the Federal Government.” § 2902(1). Simply stated,

the depositions of Wayne and Katherine Harris and Susan and Thomas Klebold do

not document the organization, functions, policies, decisions, procedures, or

essential transactions of the federal courts. In defining “record” without proper

concern for the context provided by §§ 2902 and 3101, the majority’s
interpretation of the statute is jarringly inconsistent with both the text and

purpose of the FRA. 1

In addition, the majority’s interpretation thwarts the expectations of parties

in discovery proceedings under the Federal Rules of Civil Procedure. Parties

depose witnesses to obtain information and compile evidence in aid of litigation.

They do not do so to create, nor did the parties here actually create, a historical

record of the federal judiciary. When the depositions at issue were placed in the

evidence room, that act alone did not create a federal record under the FRA. This

expectation is common to private litigants and was confirmed by the protective

orders entered by the court. Moreover, we should not assume that Congress

intended to upset the reasonable expectations of litigants in the absence of a clear

statement to the contrary.

I

A

As the FRA’s text and structure specify, the role of agencies under the Act

is to manage their own records, not to archive private documents, regardless of

their historical value. Under the Act, agencies must ensure that they “make and

1
The majority states that my dissent raises “several issues not presented by
the Rohrbough plaintiffs on appeal.” Maj. Op. at 12. To the contrary, the
plaintiffs directly argue that the proper construction of the statute is “to ensure
that adequate documentation of the agency’s transactions is preserved,” citing §§
3101 and 2902. Aplts. Opening Br. at 7.

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preserve” only those records that contain information regarding the government’s

“organization, functions, policies, decisions, procedures, and essential

transactions,” § 3101; see also Federal Records Act of 1950, Pub. L. No. 81-754,

§ 506(a), 64 Stat. 578, 586 (1950), none of which is implicated by the depositions

in the case at bar. The majority lights upon the phrase “informational value,”

Maj. Op. at 9, which appears in the definition of “records” found at 44 U.S.C.

§ 3301 but is conspicuously absent from § 3101. By doing so, the majority

expands the role of agencies to include the preservation of materials that do not

document the government’s organization, functions, policies, decisions,

procedures, or essential transactions. This mistake contravenes the objective of

the FRA: to “establish[] . . . standards and procedures to assure efficient and

effective records management,” § 2902, so that records of “the policies and

transactions of the Federal Government” are accurate and complete, easily used,

and judiciously created and preserved, see § 2902(1)–(6).

By relying solely on the definition of “records” in § 3301, the majority

effectively excises important guidance regarding agencies’ preservation duties.

Section 3101 explicitly specifies which records are subject to these duties.

Nonetheless, the majority reads the broader definition of “records” in § 3301 as

controlling over the more specific preservation rule articulated in § 3101. This is

contrary to accepted principles of statutory interpretation. See Gozlon-Peretz v.

United States, 498 U.S. 395, 407 (1991) (“A specific provision controls over one

-3-
of more general application.” (citation omitted)); Franklin v. United States, 992

F.2d 1492, 1502 (10th Cir. 1993) (“[A] specific statute . . . should not be deemed

controlled or nullified by a general statute . . . absent a definite contrary

intention.”).

Following these principles, § 3101—not § 3301—serves as my analytical

starting point. Section 3101 provides:

The head of each Federal agency shall make and preserve records
containing adequate and proper documentation of the organization,
functions, policies, decisions, procedures, and essential transactions
of the agency and designed to furnish the information necessary to
protect the legal and financial rights of the Government and of
persons directly affected by the agency’s activities.

§ 3101. I fail to see in this language a direction to the district courts to transfer

discovery in private litigation to the National Archives. The depositions at issue

do not document the categories described. In essence, the district court and the

majority read out all but the first eleven words of § 3101. But it is the remainder

of § 3101 that establishes an agency’s role under the FRA and answers the

question before us.

The majority exclusively relies on the definition in § 3301, which provides,

in relevant part:

“[R]ecords” includes all . . . documentary materials . . . made or
received by an agency of the United States Government under
Federal law or in connection with the transaction of public business
and preserved or appropriate for preservation by that agency or its
legitimate successor as evidence of the organization, functions,

-4-
 policies, decisions, procedures, operations, or other activities of the
Government or because of the informational value of data in them.

§ 3301 (emphasis added). By taking a cut and paste approach, my colleagues

conclude that the depositions at issue need not be “evidence of the organization,

functions, policies, decisions, procedures, operations, or other activities of the

Government,” id., because of their conclusion that a document may also qualify

as a record if it contains data with “informational value.” Maj. Op. at 9 (“[T]he

depositions in this case qualify as records if they were (1) made or received by

the court, and (2) preserved by the court or appropriate for preservation because

they are evidence of government performance or because they contain other

information of value.” (emphasis added)). The district court similarly interpreted

this clause to expand the role of an agency to include the preservation of records

which merely have “informational value,” despite the express guidance in § 3101

that each agency “shall make and preserve” only those which “contain[] adequate

and proper documentation of the organization, functions, policies, decisions,

procedures, and essential transactions of the agency,” § 3101. See Apr. 2, 2007

Order, Rohrbough v. Harris, No. 00-cv-00808-LTB-PAC, 2007 WL 987848, at *4

(D. Colo. Apr. 2, 2007) (“I conclude that the materials relating to the depositions

. . . fall within the definition of records under the FRA. These materials were

received and stored by the Court, and they are of significant historical value.”

(emphasis added)).

-5-
 I cannot agree with this interpretation. In § 3101, Congress explicitly

addressed what records agencies should “make and preserve” and excluded the

informational value clause present in § 3301. 2 The broad definition of “records”

analyzed by the majority appears in the chapter entitled “Disposal of Records.”

44 U.S.C. ch. 33. This context illuminates the meaning of the term

“informational value”: it allows for the preservation of materials that would

otherwise be disposed of because they no longer document “the organization,

functions, policies, decisions, procedures, operations or other activities of the

Government.” § 3101. This permits the preservation of records that are valuable

because they document an agency’s history. Section 3303(2) confirms this. It

directs each agency head to submit to the Archivist lists of records that may be

disposed of, as they are “not needed by [the agency] in the transaction of its

current business and . . . do not appear to have sufficient administrative, legal,

research, or other value to warrant their further preservation.” § 3303(2)

(emphasis added). This provision plainly corresponds to the “informational

value” provision in § 3301, and allows for an exception to the disposal of such

2
The original Federal Records Act of 1950 confirms that the contrast
between the duties of agencies in § 3101 and the definition of “records” in § 3301
was intentional. Congress included the definition of the word “records,”
containing the “informational value” clause, in the 1950 Act. Federal Records
Act of 1950, Pub. L. No. 81-754, § 511(a), 64 Stat. 578, 589 (1950). In the same
bill, Congress expressly spelled out the duties of agencies under the FRA but
excluded the “informational value” clause. § 506 (now codified as 44 U.S.C.
§ 3101). Today’s statute continues to reflect this distinction.

-6-
records if they warrant further preservation once they cease to describe current

agency activities.

Viewing the statutory scheme as a whole, an agency must originally

preserve records only because they document its organization, functions, policies,

decisions, procedures, and essential transactions—not merely because they have

“informational value.” 3 Accordingly, this term is excluded from § 3101. By

importing “informational value” into this context, the majority creates an artificial

conflict between § 3101 and § 3301 and then allows the more general

provision—§ 3301—to control.

The majority agrees that my interpretation “might be compelling if § 3101

were intended to establish the sole record-preservation duties of federal

agencies.” Maj. Op. at 13. Precisely because § 3101 is the sole section

establishing agencies’ preservation duties, I read the statute to compel this

conclusion. Section 3101 does not, as the majority implies, govern only records

created by the agency. The majority claims that the “clear purpose” of § 3101 is

to “ensure that agencies make adequate records,” Maj. Op. at 13, and the section

“mandates” that agencies “then retain those records,” id. (emphasis added). Such

3
The majority asserts that it is “not dispute[d] that the [historical value]
requirement is met.” Maj. Op. at 10. This may be so, but as noted supra n.1, the
issue of whether records which have historical value, yet do not document
government activity, fall within the FRA in the first place is squarely before us.
See Aplts. Opening Br. at 7.

-7-
a reading does not interpret the text but rewrites it. The actual text, “[t]he head of

each Federal agency shall make and preserve records,” § 3101 (emphasis added),

does not limit its preservation “mandate” to only those records an agency

“makes.” The plain text of § 3101 requires an agency to preserve records

containing “documentation of [its] organization, functions, policies, decisions,

procedures, and essential transactions” whether it made or received them. If there

were any ambiguity in this text, my reading is confirmed by the title of the

section: “Records management by agency heads; general duties.” § 3101

(emphasis added); see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 483

(2001) (“[T]he interpretive role of the title” is to “shed light on some ambiguous

word or phrase in the statute itself.” (quotation and alteration omitted)). Section

3101 establishes the complete and sole record creation and record preservation

duties of federal agencies.

The majority further claims that 44 U.S.C. § 3314 establishes a

preservation duty outside of § 3101 because it provides that “the procedures

prescribed by [Chapter 33] are exclusive, and records of the United States

Government may not be alienated or destroyed except under this chapter.” But

the majority’s belief that § 3314 establishes a duty to preserve in addition to the

duties established in § 3101 presupposes its own conclusion. Section 3314 only

controls the disposal of the depositions if they are federal records. If they are not

federal records, § 3314 does not apply to them. Thus, only by assuming that

-8-
these unsigned, unfiled depositions are federal records can the majority possibly

rely on § 3314. Because I do not assume this conclusion, § 3314 does not

establish a preservation duty. Those duties are established solely by § 3101.

B

The genesis of the FRA was President Truman’s Executive Order No. 9784.

See S. Rep. No. 81-2140, at 3547 (1950). Its purpose was “to provide that

Government records may be utilized to maximum advantage and disposed of

expeditiously when no longer needed and in the interest of more efficient internal

management of the Government.” Exec. Order No. 9784, 11 Fed. Reg. 10909

(Sept. 27, 1946). The majority’s interpretation of the FRA not only ignores this

focus on efficient disposal, reflected in § 3301, it contradicts it; under the

majority’s approach, agencies must retain more, not less, of the paper that crosses

their desks.

In 1976, Congress found that:

Because of the new utilization by the government since 1950 of
advanced technologies . . . the records production process has been
speeded up . . . . [T]he amount of paper flowing into the government
each year fills four and a half million cubic feet of space and . . . the
costs to the taxpayer of handling and managing such a mountain of
paper exceed $8 billion a year.

S. Rep. 94-1326, at 2–3 (1976). Congress decided it was necessary to add

Chapter 29, codifying the objectives of the FRA at 44 U.S.C. § 2902, to “provide

a clear expression of Congressional intent to the heads of Federal departments and

-9-
agencies on the necessity to place more emphasis on records management

programs aimed at providing essential, accurate recorded information in the

needed format and time frame to enable agencies to perform their functions

effectively and efficiently.” S. Rep. 94-1326, at 3.

Certainly, Congress was not oblivious to the possibility that records might

have historical value, but it created a separate body, the National Historical

Publications Commission (now the National Historical Publications and Records

Commission), the appointed members of which are all historians, to preserve

those with such value. Federal Records Act of 1950 § 503(a) (now codified as 44

U.S.C. § 2501(a)(2)). Notably, the Commission’s mandate is far broader than the

duties of federal agencies that fall within the ambit of the FRA. The Commission

is directed to “cooperate” with “State . . . and local agencies and

nongovernmental institutions, societies, and individuals” and may “edit[] and

publish[] papers of outstanding citizens of the United States, and other documents

as may be important for an understanding and appreciation of the history of the

United States.” § 2504(b).

Seen in context, the number of documents “made or received” by agency

personnel is orders of magnitude greater than it was in 1976. Following the

direction of Congress, I understand the FRA to restrict which records an agency

preserves to only those that “contain[] adequate and proper documentation of the

organization, functions, policies, decisions, procedures, and essential transactions

-10-
of the agency.” § 3101. The majority, on the other hand, has decided to expand

its scope.

C

The operative question is whether the unfiled, unsigned depositions of

Wayne and Katherine Harris and Susan and Thomas Klebold document “the

organization, functions, policies, decisions, procedures, and essential transactions

of the agency.” The majority errs in failing to answer that question before

addressing whether the depositions were “made or received” by the special

master, which appears to be the focus of their analysis. Maj. Op. at 10–12.

1. “Organization”

The organization of the federal judiciary was not at issue in the appellants’

lawsuit. In the context of the federal judiciary, organizational records might

document the structure of the lower courts, clerks’ offices, and judicial staff. 4

This lawsuit does implicate the structure and management of the courts.

Although the depositions themselves are not before us, it is hard to imagine how

the testimony of the parents of the Columbine shooters could document the

manner in which the federal courts are organized.

4
This list, along with the others in this section, contains only illustrative
examples of what falls within each category enumerated in § 3101 as applied to
the federal courts, and is not intended to be exhaustive.

-11-
 2. “Functions”

The primary function of the federal judiciary is to decide cases and

controversies. See U.S. Const. art. III, § 2. To achieve that primary function, the

judiciary also has subsidiary functions such as resolving motions. Records

describing the contours of these responsibilities or assigning them to court

personnel would document the functions of the judiciary. For example, the

protective order in this case is such a record because it appoints and describes the

functions of the special master. Depositions of the private parties litigating this

case, which were never filed nor were their contents considered by the court, do

not document a judicial function.

3. “Policies”

A “policy” is “a definite course or method of action selected . . . to guide

and usually determine present and future decisions.” Webster’s Third New

International Dictionary (Unabridged) 1754 (1993). The Administrative Office of

the United States Courts documents the policies of federal courts in its Guide to

Judiciary Policies and Procedures. Further policies are documented in each

court’s local rules. To consider the Harris and Klebold depositions to constitute

records that “guide and . . . determine present and future decisions” of the federal

courts strains credulity.

-12-
 4. “Decisions”

The decisions of a federal court, unlike its organization, functions, or

policies, may well turn on evidence produced in discovery. Motions for summary

judgment, for example, rely on supporting exhibits such as depositions, even if

the exhibits are not admitted at trial. Depositions used to resolve such motions

could be said to document the decision of a court. Here, however, the contents of

the Harris and Klebold depositions were never examined by the court and did not

serve as the basis for any judicial decision. They were held in the evidence room

simply as a consequence of the protective order, which required that

“[d]epositions requiring the use of non-public protected documents shall be

conducted at the Courthouse in the presence of the Special Master” (quotation

omitted). Indeed, it would have been improper for the court to base a decision on

their contents, as they were unsigned and never filed with the court. See Fed. R.

Civ. P. 5(d)(1), 26(g). Consequently, the Harris and Klebold depositions do not

document the decisions of any federal court.

5. “Procedures”

The procedures of the federal courts are closely related to their policies and

are often similarly documented. Along with the Guide to Judiciary Policies and

Procedures, courts’ procedures are also documented in their rules, such as the

Federal Rules of Civil Procedure, the Federal Rules of Appellate Procedure, the

Supreme Court rules, circuit rules, and other local rules. In a case challenging

-13-
such procedural rules, depositions that a court substantively considers and relies

on may arguably document its procedures. Because the Harris and Klebold

depositions are not related to a challenge to any judicial procedure and the court

never considered their contents, they do not document the procedures of the

federal courts.

6. “Essential Transactions”

Finally, I turn to whether the depositions document the “essential

transactions” of the judiciary. Essential transactions in a judicial context include

receiving pleadings and documents filed with or presented as evidence to the

Court (the “case file”), holding hearings and trials, entering orders, and issuing

opinions. Accordingly, the majority is correct that documents filed with the

clerk’s office are federal records. Maj. Op. at 10–11. In contrast, unsigned

depositions cannot be filed. See Fed. R. Civ. P. 5(d)(1), 26(g); Maj. Op. at 11.

Therefore, the Harris and Klebold depositions could not possibly document an

essential transaction of the court because they were neither filed with the clerk’s

office, used at a hearing or trial, nor were their contents relied upon by a judge. 5

5
The majority states that it “would be inclined to say that the depositions in
this case come within the category of records described by § 3101” because “the
depositions were taken in [the special master’s] presence and he ruled on
objections as they arose.” Maj. Op. at 14. As discussed, supra §§ I.C.4 and I.C.6,
the special master’s presence alone does not make these depositions federal
records. Whether the special master “ruled on objections as they arose” is a
question of fact the district court did not address, and which does not appear in
the briefing. The only point at which any party before this court argued that the
(continued...)

-14-
 Because the depositions of Wayne and Katherine Harris and Susan and

Thomas Klebold do not fall within any of the above categories, they do not fall

within the ambit of the FRA. § 3101. It is unnecessary to reach whether they

were “made or received” by the court. 6

II

A

Beyond misinterpreting the statute, the majority’s conclusion interprets the

FRA as throwing a wrench into discovery practice. The Federal Rules of Civil

Procedure explicitly and precisely address how discovery materials are collected

and used. See Fed. R. Civ. P. 26–36. 7 Today’s decision potentially exposes any

5
(...continued)
special master ruled on objections came at oral argument, when counsel for the
Harrises responded in the affirmative to the question of whether the special
master “made rulings.” My interpretation relies on the text and structure of the
statute, which was plainly misapplied by the district court. Unlike the majority, I
will not make this non-record-supported factual finding on appeal.
6
Because materials including in a filing with the court document an
“essential transaction,” if the appellants had filed the deposition transcripts as a
part of the record on appeal, their appeal would have been self-defeating.
7
Fed. R. Civ. P. 26 (mandatory discovery obligations, scope and timing of
discovery, supplementary disclosures, mandatory discovery conference, and
signature requirement), 27 (perpetuated testimony), 28 (who must witness a
deposition), 29 (stipulations in discovery practice), 30 (timing of oral depositions,
written notice requirements, providing for production of documents via subpoena
duces tecum, format of questioning, objection process during depositions,
duration of depositions, certification requirements, and sanctions), 31 (procedure
for taking written deposition), 32 (use of depositions in hearing or trial), 33
(interrogatories), 34 (production of documents or other electronic or tangible
(continued...)

-15-
discovery deposited with a special master to public inspection. I cannot read a

vague, broadly-worded statute directed toward public agencies as having such a

profound effect. See Canup v. Chipman-Union, Inc., 123 F.3d 1440, 1443 (11th

Cir. 1997) (“We would expect Congress to speak more clearly if it intended such

a radical change in the application and understanding of its . . . statutes.”); In re

Timbers of Inwood Forest Assocs., Ltd., 793 F.2d 1380, 1382 (5th Cir. 1986)

(“We think it unlikely that Congress would have adopted such a rule—entailing,

as it does, major changes in the way in which a reorganization proceeding is

conducted—without clear, unequivocal statements to that effect in the bankruptcy

statute or, at the least, in its legislative history.”); Flynn v. U.S. ex rel. Eggers,

786 F.2d 586, 591 (3d Cir. 1986) (“[W]e are mindful of the Supreme Court’s

admonition that, absent a clear Congressional statement, we should not infer that

Congress intended to alter equity practices.”). 8

7
(...continued)
items), 35 (physical and mental examinations), 36 (scope and effect of requests
for admission).
8
The majority asserts:

[B]efore 1980, which was well after the FRA took its present form,
all depositions had to be filed. See, e.g., Fed. R. Civ. P. 30(f) (1970)
(“[The officer before whom the deposition was taken] shall then
securely seal the deposition in an envelope indorsed with the title of
the action . . . and shall promptly file it with the court . . . .”) . . . .
Given that every deposition in a federal suit was a record subject to
the FRA before 1980, it should not be cause for great concern about
the impact on discovery if some depositions still are.
(continued...)

-16-
 By holding that any document that passes through the hands of a special

master may be transferred to the National Archives, the majority adds a new and

unexpected variable into the calculus of litigation discovery. Until today, parties

could confidently follow the Supreme Court’s command that

“deposition-discovery rules are to be accorded a broad and liberal treatment,”

Hickman v. Taylor, 329 U.S. 495, 507 (1947), safe in the knowledge that

objectionable questions and answers would not be admitted at trial, see Fed. R.

Civ. P. 30(c), and, if necessary, would be sealed for “good cause shown,” Fed. R.

Civ. P. 26(c). In other words, taking or sitting for a deposition was confined to a

particular lawsuit. No longer is this the case.

B

In addition to the broad expectations that the Federal Rules of Civil

Procedure create, the district court below adhered to those rules and created

specific expectations regarding the disclosure of discovery by entering several

8
(...continued)

Maj. Op. at 14-15 (additional citations omitted). The majority fails to recognize
that before the filing required by the 1970 version of Rule 30(f), depositions had
to be “fully transcribed,” “submitted to the witness for examination,” and “then
be signed by the witness [or the officer before whom the deposition was taken, in
certain circumstances].” Fed. R. Civ. P. 30(e) (1970); see also Fed. R. Civ. P.
30(e) (1979) (same); Fed. R. Civ. P. 30(e) (1950) (same). The deposition
transcripts at issue in this case were never signed, and the record is disputed as to
how many depositions, if any, were even transcribed. It is apparent that the
Federal Rules have always prohibited filing unsigned depositions, such as those at
issue in this case.

-17-
protective orders. See Fed. R. Civ. P. 26(c). The earliest protective order, issued

on January 8, 2002, stated, “Promptly after the termination of this action . . ., all

Protected Documents, Confidential Information, and copies of deposition

transcripts designated as confidential . . . shall be returned to counsel for the party

producing those confidential materials.” The final, consolidated protective order

of April 25, 2003, in effect when Wayne and Katherine Harris and Susan and

Thomas Klebold were deposed, and when the case was settled in August, provides

that “[a]t the conclusion of this litigation, all documents and materials deposited

in the Evidence Room pursuant to this Consolidated Protective Order shall be

returned to the producing party, entity, or person or the appropriate custodian of

any such documents and materials.” All parties to the litigation properly shared

an understanding—confirmed by the court—that all confidential discovery would

be returned to the producing parties.

The Attorney General of Colorado upset the apple cart with its September

23, 2003, motion to intervene. Although intervention was denied, the Attorney

General was permitted to participate as amicus, primarily to address his concern

that an expert in youth violence should be allowed access to the records.

Regardless of the legitimacy of this interest, it was never embraced by the parties

to this appeal nor is there any other reason they would have anticipated it when

the depositions were taken.

-18-
 C

Because of the expectations created by the Federal Rules of Civil Procedure

and the court’s protective orders pursuant to the Rules, it is extremely unlikely

that the parties ever considered that their depositions might be redirected to the

National Archives. Moreover, although the National Archives contain depositions,

see The National Archives, Archival Research Catalog,

http://www.archives.gov/research/arc/ (search for “deposition”) (last visited Oct.

10, 2008), these are from congressional hearings, executive investigations, cases

where the United States or an officer thereof was a party, or cases raising issues of

historical importance. E.g., National Archives, Archival Research Catalog,

http://arcweb.archives.gov/ (search “Reagan and Poindexter”) (last visited Oct. 10,

2008) (deposition of Ronald Reagan in U.S. v. Poindexter); National Archives,

Archival Research Catalog, http://arcweb.archives.gov/ (search “Stowe and

Thomas”) (last visited Oct. 10, 2008) (deposition of Harriet Beecher Stowe in

Stowe v. Thomas, 1 Pitts. 82, 23 F. Cas. 201 (1853)). Although the last category

includes depositions taken in private litigation, the Archives contain only

depositions that were actually part of the case file. 9

9
See, e.g., National Archives, Archival Research Catalog,
http://arcweb.archives.gov/ (search “Stowe and Thomas”) (last visited Oct. 10,
2008) (noting that “[t]he case file from which these documents originate is also
referenced as Stowe versus Thomas, Case #9 October Session 1853” (emphasis
added)).

-19-
 The Administrative Office’s schedules do not contemplate archiving unfiled

depositions, confirming that it shares the parties’ expectations regarding the scope

of the FRA. See Admin. Office of the U.S. Courts, The Guide to Judiciary

Policies and Procedures, vol. 1, ch. 12, pt. A, §§ 14-15, Record Management

Policies (2002), available at

http://jnet.ao.dcn/Guide/Volume_1/Chapter_12/Part_A.html (scheduling the

disposal of “Case Records” and “Case-Associated Records”). Records Disposition

Schedule 2 describes “Case Records” as “[a]ll records resulting from the docketing

and processing of a case in a court that pertain to that particular case.” Id. § 15(A)

(emphasis added). Similarly, NARA, in its briefing to the district court, explained

that “[t]here is no way for [it] to know whether any materials in the Evidence

Room were quoted or cited in any motions or other papers . . . . As a result, it

remains unclear at this time whether any of those materials were ‘used’ in the

cases and thus should be considered ‘records’ subject to the FRA.” As the

majority acknowledges, these depositions were never “used” by the court, Maj.

Op. at 11, and thus NARA’s reasoning confirms that they are not records subject

to the FRA.

In all litigation, parties should be on notice of the extent to which discovery

may become public. The Federal Rules of Civil Procedure anticipate and

expressly address these concerns, creating justified expectations. See Fed. R. Civ.

P. 26(c), 30(c). The majority assumes that Congress steamrolled over these

-20-
detailed and specific rules with a statute covering all federal agencies that never

once mentions litigation. Absent a clear statement of Congressional intent to

dramatically alter civil discovery practice, I cannot agree with my colleagues that

the depositions in this case are records subject to transfer to the National Archives.

III

Because my reading of the FRA directs the district court to preserve only

those records that document the federal courts’ organization, functions, policies,

decisions, procedures, and essential transactions, I cannot agree with the majority

that the Act covers the unfiled, unsigned depositions of Wayne and Katherine

Harris and Susan and Thomas Klebold. I respectfully dissent.

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