0001 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 ELOUISE PEPION COBELL, . 4 ET AL . DOCKET NUMBER: CV 96-1285 5 . 6 Plaintiff, . 7 . 8 vs. . Washington, D.C. 9 . July 9, 2007 10 KEFIN GOVER, . 11 Assistant Secretary of . 12 the Interior, et al . 3:00 p.m. 13 . 14 Defendant. . 15 . . . . . . . . . . . . . . 16 TRANSCRIPT OF PREHEARING CONFERENCE 17 BEFORE THE HONORABLE JAMES ROBERTSON 18 A UNITED STATES DISTRICT JUDGE 19 APPEARANCES: 20 FOR THE PLAINTIFF: DAVID C. SMITH, ESQUIRE 21 KILPATRICK STOCKTON, LLP 22 1001 West 4th Street 23 Winston Salem, NC 27101-2400 24 (336) 607-7392 25 (336) 734-2611 (fax) 26 dcsmith@kilpatrickstockton.com 27 DENNIS M. GINGOLD, ESQUIRE 28 607 14th Street, NW 29 9th Floor 30 Washington, D.C. 20005 31 (202) 824-1448 32 (202) 318-2372 (fax) 33 dennismgingold@aol.com 0002 1 KEITH M. HARPER, ESQUIRE 2 KILPATRICK STOCKTON, LLP 3 607 14th Street, NW 4 Suite 900 5 Washington, D. C. 20005 6 (202) 508-5844 7 (202)585-0919 8 kharper@kilpatrickstockton.com 9 FOR THE DEFENDANT: JOHN WARSHAWSKY, ESQUIRE 10 U. S. DEPARTMENT OF JUSTICE 11 COMMERCIAL LITIGATION BRANCH 12 CIVIL DIVISION 13 1100 L Street, NW 14 Room 10030 15 Washington, D.C. 20044-0875 16 (202) 307-0010 17 (202) 514-9163 (fax) 18 john.warshawsky@usdoj.gov 19 20 ROBERT E. KIRSCHMAN, JR., ESQUIRE 21 U.S. DEPARTMENT OF JUSTICE 22 1100 L Street, NW 23 Suite 10008 24 Washington, D.C. 20005 25 (202) 616-0328 26 robert.kirschman@usdoj.gov 27 MICHAEL JOHN QUINN, ESQUIRE 28 U.S. DEPARATMENT OF JUSTICE 29 1100 L Street, NW 30 Room 10028 31 Washington, D.C. 20004 32 (202) 307-0243 33 (202) 514-9163 (fax) 34 Michael.quinn3@usdoj.gov 0003 1 THE COURT REPORTER: SUSAN PAGE TYNER, CVR-CM 2 Official Court Reporter 3 United States District Court 4 333 Constitution Avenue, N.W. 5 Room 6429 6 Washington, D.C. 20001 7 (202) 371-2230 8 susantyner@verizon.net 9 Computer aided transcript prepared with the aid of 10 SpeechCAT. 0004 1 P R O C E E D I N G S 2 THE COURTROOM DEPUTY: This is civil action 3 number 96-1285, Elouise Pepion Cobell, et al versus Kevin 4 Gover. 5 Would counsel please identify themselves for the 6 record. 7 MR. WARSHAWSKY: Good afternoon, Your Honor. John 8 Warshawsky for the defendant. 9 MR. SMITH: Your Honor, David Smith for the 10 plaintiff. 11 THE COURT: Good. 12 Let's see, this I think is the third progressive 13 prehearing conference since I announced that we were going 14 to have a trial in October. I must say that the ticket 15 price for a conference to sit around talking about 16 procedural details must be awfully cheap to have this many 17 people come out to listen to this. 18 But just to review the bidding, the last time 19 that we were here we had a discussion of the exclusions from 20 the Department of Interior's 2007 accounting plan, and 21 talked about cadastral surveys, direct pay transactions, 22 compacted contracted tribal agreements, monies that were 23 never collected in escheatment, and accounts of deceased 24 beneficiaries, accounts closed before 1994 and 25 transactions after 2000 and transactions before 1938, and it 0005 1 wound up, at least in my mind, conceiving of this October 10 2 trial, which is still frankly something of a work in 3 progress. 4 As the trial addressed to these questions, just 5 what is it that the Department of Interior is including in 6 this plan? What would it cost to do what the Department is 7 not doing? 8 Taking costs into consideration as the Court of 9 Appeals has instructed that we must, is what the Department 10 is doing adequate? And what I call the bottom line question 11 about throughput, what can the Department account for versus 12 what is -- what has been -- I don't have a better word for 13 throughput -- revenues, receipts. 14 And so I sent the parties off to talk about who 15 would testify and about what. Parties were to meet and 16 confer. Parties have met and conferred, and I think mostly 17 disagreed. 18 There are some areas of agreement. Let me 19 enumerate them, and then when the lawyers get up to talk 20 they can tell me if I missed anything. 21 They have agreed that the plaintiffs may have 22 until August 6 to identify deficiencies in the 23 administrative record. We are talking, I think, about 24 documentary deficiencies and omissions from the 25 administrative record that the government has filed on, I 0006 1 think, last Friday. 2 Then they could not agree on how long the 3 plaintiffs would have to respond to the objections. The 4 plaintiffs say -- I mean how long the defendants have to 5 respond to the objections. 6 The plaintiffs say give them seven days. The 7 defendant says, we want 14. So I have made my first 8 Solomonic decision that the number is Eleven. Eleven for 9 those of you who know the Federal Rules know that it is a 10 magic number. Eleven means not twelve or thirteen or 11 weekends, it means eleven days. 12 The parties agree that they will give one another 13 three day notices, a kind of rolling notice of witnesses who 14 will be called. The parties agree to file pretrial 15 statements by September 17. Motions in limine by September 16 21, and that there will be another pretrial conference, a 17 final pretrial conference on September 28. 18 The parties agree that as to expert witnesses Rule 19 26(a)(2) will be in effect, and they are to exchange Rule 20 25(a)(2) disclosures for their expert witness together with 21 data, documents or other information considered by the 22 expert now. 23 That last provision is a little unusual. I mean 24 if there are experts who have considered all of the 25 documents in the Commerce Department or all of the 0007 1 accounting treatises on record, they certainly do not have 2 to produce that kind of information. But if there is 3 specific reports or documents that are relevant to their 4 testimony, then they have to be produced along with the 5 26(a)(2) disclosures. 6 Now there are some pretty fundamental 7 disagreements between the parties. The defendant wants the 8 plaintiff to identify what its challenges are to the 2007 9 plan in advance of the trial, and the plaintiffs say, wait a 10 minute, that is what this trial is all about. That is what 11 we are going to find out at the trial. 12 In any event, the plan is too general just to file 13 objections to the 2000 plan in advance. We will talk about 14 that, or I hope that we will talk about that this afternoon, 15 but my instinctive response to it is that the plaintiffs 16 have the better of that argument. 17 I mean I hasten to say that I don't have a 18 perfect image of how this trial is going to go, but I had 19 thought that it would begin with the plaintiffs -- excuse 20 me with the Department laying out what its plan is and 21 putting on the witnesses who will explain it and defend -- 22 or at least defend what they know is going to be attacked. 23 Remember I said the last time we were here that if 24 the plaintiffs did not want to -- I keep calling you 25 plaintiffs. If the government did not want to do that, the 0008 1 alternative way to do it would be just to let the 2 plaintiffs subpoena the witnesses that they want to put on 3 the stand and let the treat them all as adverse witnesses, 4 and I think that the government's response to that was on 5 no, no. 6 We do not want to do that. We will bring the 7 witnesses. We will put them on live. We want to tell our 8 story. 9 Well, that is what I will expect you to do. I 10 mean you can certainly anticipate what some or many of the 11 challenges to this plan will be. But to require the 12 plaintiffs to identify all of their challenges before trial 13 puts the plaintiffs -- would put them, I think, at a 14 particular disadvantage. 15 Everybody should remember that we are talking 16 about a bench trial. This is not a trial in which if a word 17 is spoken amiss that it will go into the jury's mind forever 18 and cannot be forgotten. 19 I mean I don't know why judges are supposed to be 20 able to sort these things out better than juries, but we 21 are. By act of Congress we are better at that than juries, 22 so you can -- and so there is going to be some -- both sides 23 are going to be feeling their way a little bit during this 24 trial. 25 And it is not written in stone that the trial has 0009 1 to begin on October 10 and continue day after day until it 2 is completed. It may very well be that we will try it for a 3 while and come to a point where we decide everybody has got 4 to go back and regroup for a while and come back and try it 5 some more. 6 So at any rate, that is my take on the suggestion 7 that the plaintiffs identify all of their challenges to the 8 plan in advance. 9 Now there are a lot more -- well, I think the 10 other most important dispute that is revealed by the papers 11 that have been filed before me concerns discovery. 12 Plaintiff wants discovery of documents, certain documents on 13 costs on what I have called the throughput question. 14 Plaintiff wants requests for admissions. They want 30(b)(6) 15 deponents. 16 And my response -- my take on that is no. Not 17 because this is an APA case, although that would be reason 18 enough, but because everybody in this courtroom knows more 19 about this case than I do, and you have been at it for 20 years, and years, and years, and the plaintiffs have copious 21 information, and they are going to have witnesses on the 22 stand. 23 They can ask questions, and I could see situations 24 in which a government witness says X, and the lawyer says, 25 we don't have any documents to establish X. Where are they? 0010 1 And someone is sent out to get them. 2 That is one of the advantages of having a bench 3 trial. Everybody is going to be feeling their way a little 4 bit I think. 5 So my reaction to the document discovery, and the 6 request for admissions, and 30(b)(6) depositions is -- I 7 don't think there is enough time for that, and it does not 8 accord with my notion of what this trial is going to be 9 anyway. 10 The plaintiff wanted the administrative record 11 provided in TIF or PDF searchable form. I don't know if 12 that was done or not. That certainly would be useful for 13 everybody if it were possible. 14 I understand that there are technical issues with 15 making documents searchable. Documents that are born 16 electronically can be searchable, those that are not it is 17 much more problematic. I would be interested in hearing 18 about that. 19 The plaintiffs want what we call in this 20 jurisdiction de bene esse depositions, depositions of people 21 who can not come and testify. I am not quite sure who they 22 have in mind, but I think it is also a little late in the 23 day for that. 24 Now as I have done all along, what I have given 25 you are reactions and not necessarily rulings, and I will be 0011 1 happy to hear from counsel either about what I have said or 2 about anything else that is on your mind today. 3 Mr. Warshawsky. 4 MR. WARSHAWSKY: Good afternoon, Your Honor. 5 THE COURT: Good afternoon. 6 MR. WARSHAWSKY: Your Honor, at the outset I do 7 have to say that I think the areas that you have summarized 8 on agreement I think for the most part we would concur with. 9 There are a number that I would want to clarify. But let me 10 be quite clear at the outset. 11 First of all it is our intention to see this 12 matter proceed on October 10. So there is no desire to 13 forestall that. And we certainly do plan to proceed -- the 14 government to proceed initially presenting its case-in- 15 chief, presenting the plan and describing the elements that 16 you have referred to. 17 So we think that as you have described your vision 18 of the trial, that is consistent with our plan for 19 proceeding with our case-in-chief. 20 I have to say actually having worked on this case 21 for five and a half years that in some respects the parties' 22 reports to the court reflected a lot more agreement than 23 historically I might have anticipated. 24 We did have agreement about the date for filing 25 the administrative record, and indeed that did take place 0012 1 last Friday. 2 There was agreement about Rule 26(a)(2) governing 3 expert reports. There is some disagreement between the 4 parties as to what types of individuals constitute experts 5 under Rule 26(a)(2), and I would like to have the 6 opportunity to address that. 7 The plaintiffs agreed to September 17 for pretrial 8 statements if ordered by the court. Obviously we -- 9 THE COURT: If what? 10 MR. WARSHAWSKY: If ordered by the court. And I 11 understand -- and I won't speak for the plaintiff. I'm not 12 sure whether they have relaxed that condition. 13 Obviously we think pretrial statements are 14 necessary for disclosure in advance of the trial, and we 15 would hope that the court would, indeed, order that 16 pretrial statements be filed no later than September 17, 17 which is eleven days prior to the pretrial conference, 18 which the parties again agreed should take place on 19 September 28. 20 The parties did have agreement with respect to the 21 admissibility of previously admitted exhibits and testimony 22 in the phase 1.5 hearing, the one conducted in 2003. The 23 parties do not agree as to the admissibility of testimony 24 and exhibits for matters other than the phase 1.5 hearing, 25 and again I will address that as well. 0013 1 THE COURT: Okay. 2 MR. WARSHAWSKY: In essence, Your Honor -- well, 3 if you wish, Your Honor, I could get to that right now. 4 THE COURT: In any order you choose, Mr. 5 Warshawsky. 6 MR. WARSHAWSKY: We agreed on the rolling three- 7 day notice. The parties also agreed that if the court 8 desires to conduct a visit to Lenexa, Kansas to see the 9 American Indians Records Repository that some procedure 10 needs to be established ahead of time, and that goes without 11 saying. 12 I would like at the outset to address the issue 13 that you raised, Your Honor, about the identification of 14 issues. The defendants have requested that the court order 15 the plaintiffs to identify all challenges to the plan by 16 August 6. 17 We do that principally as a matter enabling the 18 parties to plan, to preserve judicial resources and to avoid 19 surprise. 20 As I think everyone in the courtroom is aware, we 21 are working on a compressed timeframe. It seems to the 22 government that any kind of advance disclosure is good 23 disclosure, and that is why we would request respectfully 24 that the court require the plaintiffs to notify us prior to 25 the hearing as to any other challenges. 0014 1 Obviously we understand what most of the 2 challenges are based on. For example, our discussion with 3 the court last time. But in the event that there are 4 additional challenges it would be, I would submit, helpful 5 for orderly process for the court to require that disclosure 6 in advance. 7 The government -- in our proposed order and 8 report, we recognize that there are going to likely be 9 trial exhibits that have not been in -- that are not part 10 of the administrative record, and we proposed August 31 as 11 the date for the parties to exchange any other trial 12 exhibits. 13 For example, Your Honor referred to the throughput 14 issues. It is very possible that there will be some 15 throughput exhibits that are not within the administrative 16 record. 17 Similarly, to the extent plaintiffs have requested 18 the right to -- as I understand the report -- to effectively 19 supplement the administrative record. That is really not a 20 function of a non-government party to supplement the 21 administrative record, but I understand -- or understood 22 that they did want to provide some kind of supplementation 23 to the documents already in. 24 Again, we would respectfully ask that the court 25 establish August 31 as the date for that. 0015 1 As I indicated, the parties did agree with respect 2 to the phase 1.5 hearing, the phase 1.5 hearing was 3 effectively, among other things, a review of the Interior's 4 2003 plan to perform the historical accounting. 5 In many respects there are analogies that can be 6 drawn between the substance of what was reviewed in 2003 and 7 what will be reviewed this fall. For that reason the 8 parties concurred that the exhibits and testimony from phase 9 1.5 should be allowed in to this hearing as well, the ones 10 that were admitted. 11 As I understand plaintiffs' position, plaintiffs 12 want an exhibit that has been admitted previously, any 13 testimony that has been previously admitted to be admissible 14 for this hearing. 15 As the court is well aware, this litigation has 16 past its eleventh year of being on the court's records -- 17 having been filed. And to allow such a wide open 18 admissibility of material that arguably has no relevance to 19 what we are going to do in the fall, that is the principal 20 reason the government would oppose it. 21 If the plaintiffs wish to offer previously 22 admitted testimony or exhibits from other proceedings, Your 23 Honor, we would ask the court to handle that on a case-by- 24 case basis. 25 As I indicated with regard to experts, the parties 0016 1 did agree that Rule 26(a)(2) should govern the disclosure of 2 expert opinions and the reports. 3 There was some significant disagreement between 4 the parties as to how that would be implemented. First of 5 all, in the government's report we recommended -- we asked 6 the court to order simultaneous exchanges of expert reports 7 in mid -- I'm sorry, on August 24. We also asked the court 8 to set a date for filing rebuttal expert reports. We 9 suggested September 14. 10 The plaintiffs' proposal was that the government 11 would disclose their experts on August 15, and that the 12 plaintiffs would respond 30 days later. We believe the 13 submission of their initial experts less than a month before 14 trial is insufficient time and see no justification for a 15 serial exchange. We would ask the court to require that 16 they be simultaneously exchanged. 17 And we requested again August, because once again 18 we are working a lot of information into a compressed 19 timeframe. That kind of disclosure -- the time of that 20 disclosure will, again, allow the parties to more fully 21 understand each other's positions, and we would submit 22 preserve judicial resources. 23 The plaintiffs' proposal also asks that the Rule 24 26(a)(2) requirements be applied beyond the category of 25 witnesses covered by the Rule 26(a)(2). 0017 1 In other words, 26(a)(2) refers to specially 2 maintained -- specially retained contractors and employees 3 whose jobs, duties regularly involve giving testimony. It 4 is not every person who would offer any kind of expert 5 opinion. It is a class of experts. 6 Plaintiffs have asked that the defense be required 7 to provide expert reports for any -- quote: 8 "For employees working on 9 defendants' historical 10 accounting." 11 That is a much broader class, and absent any 12 good justification for requiring the extension of Rule 13 26(a)(2) to a broader class of witness, we have opposed that 14 request. 15 The plaintiffs -- I might add, by the way, with 16 respect to the timing that the plaintiffs proposed, the 17 plaintiffs have opposed any pretrial disclosure of rebuttal 18 experts. 19 Under their schedule the initial experts would be 20 disclosed mid-August for the government, September -- mid- 21 September for the plaintiffs, and then rebuttal experts come 22 out in trial. We submit that that is just too late for 23 efficient use of this court's time and the parties' ability 24 to define issues. 25 THE COURT: Before we get too deeply into the 0018 1 subject of rebuttal experts -- 2 MR. WARSHAWSKY: Sure. 3 THE COURT: I think both sides are entitled to 4 know that to me the term rebuttal is a really, really narrow 5 term, and the actual incidence of rebuttal testimony or 6 expert testimony in trials is -- I won't say rare but 7 unusual. 8 So calling someone a rebuttal expert to come back 9 and deny what was said by somebody else, that is not 10 rebuttal. Rebuttal is something different. It is more 11 narrow. 12 It is to respond to something that was new in 13 response that was unanticipated and so forth. So rebuttal 14 -- a rebuttal expert is not a truck that you can drive a lot 15 of stuff through in this trial. There will not be much 16 rebuttal. 17 MR. WARSHAWSKY: Well, I certainly appreciate 18 that, Your Honor. I don't -- I'm familiar with the sort of 19 practice that you are referring to. It is certainly not our 20 expectation, our plan to hold experts back for a rebuttal 21 case. 22 But I will say this, not having the benefit of the 23 types of pretrial disclosure that we would like, it is 24 potential -- the potential does exist that a new issue will 25 be a raised during the plaintiffs' case-in-chief. 0019 1 THE COURT: Yes, there is. Particularly in this 2 case where everybody is playing kind of running guns, there 3 might be surprises. I understand that. 4 MR. WARSHAWSKY: In any event -- 5 THE COURT: It is remarkable we are still playing 6 running gun after eleven years, but that is what we are 7 doing. 8 MR. WARSHAWSKY: Well, Your Honor, the plaintiffs 9 included in their proposed order a provision that was, 10 frankly, vague and ambiguous we would say. It stated, 11 quote: 12 "It shall not be necessary 13 for a party to designate 14 as an expert witness a past 15 or present employee or 16 consultant of the opposing 17 party from whom an expert 18 opinion may be elicited 19 unless that individual has 20 become that party's retained 21 expert." 22 And this is paragraph seven of the plaintiffs' proposed 23 order. 24 I'm not really sure what that means, but since I 25 don't know what that means I don't believe it appropriately 0020 1 should be part of a scheduling order. I think a scheduling 2 order obviously needs to be clear as to what the party's 3 responsibilities are. 4 And let me see. I believe the court actually has 5 covered quite a few of these remaining items. One thing I 6 need to clarify. Actually the court referred to 30(b)(6) 7 depositions that the plaintiffs had requested. 8 THE COURT: Yes. 9 MR. WARSHAWSKY: I believe, if I understand the 10 plaintiffs' report and proposed order, I believe they are 11 referring to trial witnesses. 12 THE COURT: Oh. 13 MR. WARSHAWSKY: That they wanted to have the 14 government designate witnesses to testify in the 15 plaintiffs' case-in-chief pursuant to a procedure similar to 16 30(b)(6). 17 We oppose that because among other things it is 18 really not the government's job to prepare the plaintiffs' 19 witness list. And undoubtedly if a witness does not 20 provide the testimony that the plaintiffs wish, we are 21 going to hear an attack that we simply provided the wrong 22 witness. 23 I think that the court was quite perceptive in 24 talking about the party's knowledge about the case, and I 25 think the plaintiffs are perfectly capable of assembling a 0021 1 witness list without the government taking on the 2 responsibility of designating witnesses for their case-in- 3 chief. 4 The court covered the request to take de bene esse 5 depositions, and of course we concur that. 6 So with the supplementation as I have set out 7 here, we respectfully request the court to enter the 8 scheduling order that we have proposed with our report. 9 THE COURT: All right. Thank you, Mr. Warshawsky. 10 Mr. Smith. 11 MR. SMITH: Good afternoon, Your Honor. 12 THE COURT: Good afternoon. 13 MR. SMITH: If I could take a second and 14 introduced to the court an individual who is a new face at 15 our table. His name is Dan Taylor, and he is one of my law 16 partners in North Carolina and a good friend. 17 Dan is a 1968 graduate of West Point and a 1976 18 graduate of Wake Forest University in North Carolina. He is 19 a member in good standing in the North Carolina Bar, and he 20 will be joining us on the trial team. 21 THE COURT: Mr. Taylor is welcome. 22 MR. SMITH: Thank you. 23 MR. TAYLOR: Thank you, Your Honor. 24 MR. SMITH: Your Honor, in going through your 25 list, I think we agree with everything you outlined as to 0022 1 that which we agree on, and it is interesting we did agree 2 on some material ports. 3 The one area where perhaps I question is where you 4 talked about the designation of experts. They do disagree 5 with the type of experts that have to be included in the 6 designation, whether it has to include consultants or 7 employees who may provide expert testimony. 8 There are really two areas that I thought we had 9 agreement on, and if you compare the two reports they differ 10 in some respects. 11 We thought we had agreement on the ability to use 12 prior exhibits and prior testimony in all the actions. When 13 the reports came out it was limited to trial 1.5. 14 We actually thought we had an agreement on 15 consultants who may provide an expert opinion, and when the 16 reports came out Monday night that had been excluded. 17 Now there are three primary areas -- 18 THE COURT: Did you say consultants who may 19 provide an expert opinion? That sounds like a 26(a)(2) kind 20 of experts. 21 MR. SMITH: Your Honor, I think it is. And as I 22 read their report -- and I think that is the nub of the 23 problem. 24 They have five accounting firms working on their 25 accounting plans. They have statisticians. They have 0023 1 historians. My understanding is that those individuals 2 will come and testify not only about what they are doing but 3 to opine about whether it is adequate, whether this 4 statistical accounting or whatever they are doing is 5 meaningful. 6 Those are in the nature of expert opinions, and 7 our feeling is that those people should be designated in the 8 Rule 26(a)(2) report, and they should be required to provide 9 reports just like any other experts. Otherwise you don't 10 really have a level playing field. 11 Their position, as I understand it, is that only 12 retained experts should be disclosed. 13 THE COURT: You mean only people retained as 14 experts and not -- 15 MR. SMITH: Right. 16 THE COURT: -- in effect operating room physicians 17 who know something about the case? 18 MR. SMITH: Exactly. And they take the position 19 that their contractors who are working on this plan, even 20 though they may provide expert testimony, they do not have 21 to be disclosed. 22 Your Honor, that raises difficulties. And I think 23 legally they are not correct. I think Rule 26(a)(2) 24 requires disclosure of all experts regardless of whether 25 they are retained experts or not, or whether they are 0024 1 employees who have been specifically hired for this action 2 to testify. 3 THE COURT: Well, instead of focusing on Rule 4 26(a)(2) and exactly what it means, let us focus on what 5 this trial is going to be and who you expect are going to be 6 the witnesses. 7 Would you concede that an employee of the 8 Department of Interior who testifies about the work he has 9 been doing -- or she has been doing and how important it is 10 would not fall under your agreement, whatever it is, about 11 experts? 12 MR. SMITH: Right. I would agree that anyone who 13 is simply providing the factual background about what they 14 are doing, that would not be an expert for disclosure 15 purposes. 16 THE COURT: And what if it is a person who has 17 been working on this same -- doing the same stuff but 18 contracting it out to someone? 19 MR. SMITH: If it is an individual who is simply 20 testifying about this is what we are doing, that's a factual 21 witness. 22 THE COURT: And what kind of testimony would that 23 witness give that you think would put you to a disadvantage 24 if you did not have Rule 26(a)(2) disclosures? 25 MR. SMITH: Your Honor, if they take the next step 0025 1 and start addressing opinions about based on what we have 2 reviewed and what we have done we believe this is an 3 adequate accounting, or based upon our statistical sampling 4 we have reviewed it, and we feel it is a reasonable method 5 to do this particular accounting process, those types of 6 things, when they start expressing opinions about what they 7 have done, expert opinions, then I think that is where they 8 cross the line. Otherwise you really have a one-sided 9 disclosure process. 10 Since all our experts are retained experts we need 11 to produce everything. We need to produce reports and 12 disclose what they can testify to. And as I understand it, 13 most of their experts who will be testifying about the same 14 thing would not be disclosed, and it makes it a very uneven 15 process. 16 I think under the rules this court has the ability 17 to go ahead and require disclosure of all experts. I think 18 if you look at the advisory opinions -- excuse me the 19 advisory notes to Rule 26 it says specifically that. Under 20 Rule 26 this court can order disclosures that go beyond what 21 the rules specifically require. 22 THE COURT: It is not clear to me. Are you-all 23 contemplating lining up each other's experts and taking 24 their depositions before this trial takes place? Or are you 25 basically going to depose them here in the courtroom? 0026 1 MR. SMITH: Your Honor, it differs in that 2 respect, and our position is that if the expert witnesses 3 provide reports, I don't think there is time for 4 depositions. I think that we look at the reports, we base 5 our opinions on that, and then we go ahead and learn what we 6 can through the trial process. 7 You mentioned at one of the very first status 8 conferences, a lot of our discovery is going to be what we 9 hear in this courtroom beginning October 10. I don't think 10 we need depositions of expert witnesses if adequate reports 11 are filed by all of them. 12 On the other hand, if they aren't going to require 13 reports of their consulting witnesses who will testify as 14 experts, then I do think we need depositions to know what 15 they're going to say. 16 There is no way that our experts can respond to 17 theirs unless we have some way of knowing what they are 18 going to say before October 10th, unless we threw it all 19 into the trial, you know, and don't have any disclosures and 20 just see how it goes. 21 THE COURT: Do it the old fashioned way. 22 MR. SMITH: Yes. 23 THE COURT: Bring your witnesses down and see who 24 wins. 25 MR. SMITH: That is actually much preferable -- 0027 1 much more preferable to the one-sided disclosure that they 2 have asked for. I think that is the alternative. Either we 3 disclose all of the witnesses who are going to be testifying 4 as experts, provide expert opinions and disclose that, or we 5 just throw it all out at trial and see how it goes, in which 6 case we don't need disclosures at all. 7 I think that those are the two reasonable 8 alternatives. 9 THE COURT: All right. 10 MR. SMITH: Your Honor, the other area regarding 11 experts we disagree are timing. They contend there should 12 be simultaneous disclosure if there is a disclosure of 13 experts. 14 Our problem with that is that the issue in this 15 case is what are they doing? What are they not doing? 16 How much is it going to cost to do what they are not doing? 17 They need to tell us what that is. They need to 18 disclose that so our experts can review that and consider 19 that. That is why we have suggested basically a two-tiered 20 process, that they disclose their experts by mid-August, and 21 we will disclose ours 30 days later. 22 Presumably their experts should be already. They 23 have prepared this plan, and I think we can even move that 24 up. Have it by August 1 and September 1 if they feel 25 disclosure of our experts by September 14 is insufficient. 0028 1 But we need to know what they are going to say 2 and what their experts are going to say. As we noted 3 earlier their, plan is very general in nature. They have 4 to provide the details on how they are doing it and what 5 they are doing. Our experts cannot speculate as to that, 6 and that is why we need them to make their initial 7 disclosures. 8 Your Honor, as far as the next area of rebuttal 9 experts, I mean frankly as you noted rebuttal experts are 10 typically quite narrow. 11 Our position is, let's hear what happens at the 12 trial, and if something new comes up during the trial, the 13 experts will be prepared and can review that transcript, and 14 they can provide that rebuttal expert testimony during the 15 trial. I don't think we be disclosures for that, and 16 certainly not taking depositions of that. We only have 17 about three months until the trial starts. That is not much 18 time. 19 Your Honor, the last area I think you mentioned 20 was depositions. I don't again think we need depositions 21 unless there is inadequate disclosure by the government as 22 to what their expert testimony is going to be. 23 The second area I particularly wanted to address 24 was the use of prior exhibits in testimony. You know in 25 some respects it is a question of the rules of evidence. I 0029 1 mean if all of the parties were represented during that 2 testimony and if it is relevant, certainly it should be 3 admissible, and you are the gatekeeper for that. 4 But on the other hand, this is not just one -- 5 these are not separate trials. These are separate phases 6 reaching up to a final resolution. In many respects this is 7 different phases of the same trial. 8 We have had a lot of testimony in this case. We 9 have had literally hundreds of days of testimony. We have 10 had hundreds of exhibits that have been entered in this 11 case. They all build on one another. 12 They want to limit it to trial 1.5, and in trial 13 1.5 a lot of reliance was placed on testimony in trial one 14 and exhibits used in trial one. They are all interrelated, 15 and that's why Judge Lamberth's procedure was, if I admitted 16 it before, I don't have to go through the process and you 17 don't have to go through the process of trying to readmit 18 what I have already agreed should be in. 19 Certainly we don't expect the court to read 20 hundreds of pages -- or hundreds of days of transcripts, and 21 I think in the pretrial statement we can designate those 22 portions of the transcript -- of the prior transcripts that 23 we think are key and that are relevant to this particular 24 proceeding. 25 But as far as exhibits, it seems to me if it has 0030 1 been used before, it should be admissible. In fact we 2 researched that issue looking at other cases where there 3 were phases of one proceeding, and we could not find a 4 single case that said that the exhibits from the prior case 5 would not be admissible, and certainly there are a number of 6 cases that say where they would be admissible. 7 The leading case is out of the Ninth Circuit, Fed. 8 2nd, 1352. It basically said, we are not going to put the 9 parties and the court to the burden of trying to prove 10 something that has already been admitted in an earlier 11 phase. 12 Your Honor, as far as documents and discovery, we 13 have been provided the administrative record. We got it 14 Friday afternoon. It was provided intentionally in a PDF 15 format. I understand sometime later we got some documents 16 in a TIF format. 17 So we're working on those trying to see if we can 18 convert them into a usable system. We have some problems 19 with that, and I cannot say I have looked through all of the 20 documents by today. 21 The index does not correspond to the documents. 22 You cannot look at the number on the index and find the 23 document itself, so there are some logistics we need to work 24 out. 25 But we have noted some glaring omissions, some 0031 1 documents that would be in the administrative record that 2 are not, documents that referred to other documents, and I 3 think Your Honor has set October -- August 6 for the day for 4 identifying other documents that we feel should be in that 5 record. 6 Your Honor, our request, as you noted, was to go 7 somewhat broader than that. We feel there are documents 8 that relate to this proceeding that are not contained in the 9 strict administrative record, documents such as the 10 throughput analysis that they are doing. 11 I understand that they have those documents, but 12 they do not want to produce them until they are designated 13 as exhibits, documents such as how much it is going to cost 14 to do these exclusions. 15 Those are items that we have never been provided 16 documentation before, and I think it is important for our 17 experts to be able to see those before they provide opinions 18 and before they are required to formalize their opinions and 19 testify. 20 So what we have requested, Your Honor, is by 21 August 6 that we identify specifically other documents that 22 we feel we need for this particular proceeding, and I 23 anticipate it will include the throughput analysis. I 24 anticipate it will include the cost information, with the 25 same proceeding as you noted following objections eleven 0032 1 days later. 2 There are other items that were specifically 3 mentioned, objections to the plan. 4 THE COURT: Let me stop you where you are, Mr. 5 Smith, because I hear what you're saying about the omission 6 of what I have called the throughput numbers and the cost 7 numbers from the administrative record. 8 The government's position I'm sure is, well, the 9 administrative record is a record of our plan. These are 10 other questions that you have thrown into the soup, Judge. 11 They are not part of our administrative record, and we don't 12 have an administrative record of those things. What we are 13 going to do is develop information about those matters and 14 present them for trial. 15 So the August 7 -- August 6 deadline for 16 identifying deficiencies in the administrative record does 17 not really read on this problem. 18 MR. SMITH: That is exactly right, and that is 19 exactly the position they take. This administrative record 20 relates solely to our May 31, 2007 accounting plan, and it 21 does not relate to the additional issues that you have 22 raised. 23 That is why we suggested that by August 6 we 24 identify any other documents we feel we need to address 25 those issues that you have raised that are not in the 0033 1 administrative record. 2 THE COURT: All right, go ahead. 3 MR. SMITH: Your Honor, with respect to the 4 objections to the plan, in many respects we have already 5 done that. We have identified areas where they have 6 excluded beneficiaries or transactions. We have had that 7 dialog. 8 But you know this trial is not really about just 9 their plan. It is more than that. It is what they are 10 doing, and what they are not doing, and how they are doing 11 it. 12 You can look at their plan and you can try to 13 guess what they are saying in that plan, but it is really 14 premature for us at this stage to make formal objections to 15 the plan. I think as you noted, that was the argument. 16 That is again a part of this trial process. We're going to 17 learn about this plan. We're going to get discovery 18 regarding what they're doing. 19 Your Honor, the problem with these plans is you 20 can have a trial regarding a plan, you know, and six months 21 later they can create another plane. This is their ninth 22 plan in nine years. 23 So at least we don't foresee the trial just being 24 about this particular plan. It's more about what they have 25 excluded from the plan and every plan prior to that. We 0034 1 have covered those areas of exclusion. 2 As far of days for identification of exhibits, I 3 think that is covered by Rule 16.5 where people have to -- 4 the parties have to designate experts -- excuse me, 5 exhibits, and that would be under the plan we have by, I 6 believe, September 17. 7 Your Honor, the designation of subjects under 8 which witnesses can testify, I think Mr. Warshawsky 9 correctly stated that what we were requesting was not 10 30(b)(6) depositions, but that in our pretrial statement we 11 be allowed to designate areas on which we want people to 12 testify. 13 For example, the area of compacting and 14 contracting tribes. Ask them to produce the person who is 15 most knowledgeable on that issue to come and testify for us. 16 So we don't have to search through their witnesses to try to 17 find the correct person. 18 Testify regarding direct pay. Who is the person 19 at the defendants who has that specific knowledge regarding 20 oil and gas? Bring that person to testify so that person 21 can inform the court what they are doing. It seems a much 22 more efficient process if they can provide these people 23 without us having to search through individual experts -- or 24 witnesses trying to find the best person to testify as to 25 that. 0035 1 Mr. Warshawsky had a question about a provision in 2 our order regarding expert witnesses of other parties. Your 3 Honor, what we are suggesting by that was if an adverse 4 witnesses is called, a witness for the defendant, and they 5 are knowledgeable in a particular area, that we can obtain 6 an adverse opinion from them without having to formally 7 designate them. Perhaps that is a given, but we wanted to 8 be sure it was clarified in the order. 9 Your Honor, the final area is the witnesses who 10 may be unavailable in the de bene esse depositions. What we 11 particularly had in mind, Your Honor, are some of our 12 clients who may be because of health reasons or because of 13 specific economic circumstances unable to come to trial. 14 There are witnesses out in Indian country who 15 have information regarding the issues that you have raised 16 about the problems with the estates, about the problems of 17 not being an account holder yet having -- being a 18 beneficiary. 19 I think that it is important for those individuals 20 to come and testify, but some of them may not be able to do 21 it. And those are the limited circumstances we had in mind 22 when we drafted that part of the order. 23 I think it is important for their voice to be 24 heard, because the case is really about them, and in those 25 circumstances we would like the opportunity to take their 0036 1 depositions if they cannot be here. 2 Thank you, Your Honor. 3 THE COURT: All right. Anything further Mr. Mr. 4 Warshawsky? 5 MR. WARSHAWSKY: Briefly, Your Honor. 6 THE COURT: Tell me -- respond to a couple of 7 points. 8 Respond to Mr. Smith's point about the documents 9 that support your costs and throughput numbers. I 10 understand your position, and I agree with your position 11 that those are not part of your APA response, because they 12 are not part of your record. But it is part of what I want 13 tried in this case. 14 So you are not thinking about bringing those 15 exhibits down on the day of trial, are you? 16 MR. WARSHAWSKY: We proposed August 31 as the date 17 for disclosing that, Your Honor. Those would be other trial 18 exhibits, and that is the sort of thing we believe the 19 parties should simultaneously be exchanging at that time. 20 So of course we certainly did not propose bringing that down 21 at the last minute. 22 THE COURT: Okay. Now for tribal members who have 23 something to say and who do not want to come here, or who 24 cannot come here to testify and who have information that is 25 relevant to the issues that will be tried in this case, what 0037 1 about starting with affidavits? 2 MR. WARSHAWSKY: Your Honor, I would -- if 3 somebody's going to testify, I would want to have the 4 opportunity to cross, and you cannot do that obviously with 5 affidavits. 6 THE COURT: I understand that. I want to keep 7 reminding everybody this is a bench trial, and it is 8 possible that we can stop, and it's possible if an affidavit 9 comes in that you want to challenge, it is possible that we 10 can stop and you can fly out to Oklahoma and take a 11 deposition. 12 MR. WARSHAWSKY: Your Honor, I think if the 13 plaintiffs -- the problem with the plaintiffs' proposed 14 order is that they have asked for blanket authority to take 15 an unspecified group of depositions. 16 The way normally one proceeds is if the parties do 17 not agree on taking the deposition of an otherwise 18 unavailable witness, an application has to be made to the 19 court and good cause shown. 20 Frankly, at this point we don't see the relevance 21 of -- we don't see the relevance of the types of witnesses 22 that Mr. Smith spoke of for purposes of reviewing the 23 historical accounting plain. 24 THE COURT: Well, I'm not sure that I do, either, 25 and that is why I am suggesting that we start with the 0038 1 affidavit, and then I may look at an affidavit and say yes, 2 that is relevant. And you may say, well, we cannot accept 3 that. We want to going take this guy's deposition. Then we 4 can do it. 5 Or I can look at the affidavit and say, this has 6 nothing to do with the case. Thank you very much, send it 7 back, and we have not taken a deposition we don't need to 8 take. 9 MR. WARSHAWSKY: Your Honor, I would not feel -- I 10 don't feel that I'm in a position to agree to the 11 admissibility of an affidavit in the record. It is very 12 possible -- I mean we are all going to be racing around 13 doing a lot of work getting ready -- 14 THE COURT: I'm not asking you to agree to 15 anything in advance. I'm suggesting a way of proceeding 16 that would preserve your right to object -- preserve your 17 right to take the objection and save everybody a lot of 18 time, and trouble, and travel, and money in between. 19 MR. WARSHAWSKY: Perhaps the plaintiffs could 20 submit the affidavit as an element of a proffer to show why 21 they want to be able to use someone's testimony at the 22 hearing. 23 THE COURT: Okay. 24 MR. WARSHAWSKY: That would certainly be 25 acceptable. 0039 1 THE COURT: Testimony other than testimony 2 received in the 1.5 hearing. Here's my take on that one. 3 Any evidence that has been -- anything that has 4 been received in evidence by my predecessor judge in this 5 case will be presumed admissible, but it won't automatically 6 be admitted, because the government will obtain an objection 7 as to relevance. Relevance is the issue. 8 If it has been previously received -- if it has 9 been previously received, we don't have to go through the 10 drill of identifying, and authenticating, and worrying 11 about all of the other objections that could be made to 12 evidence. 13 But it may be that it was admitted for some other 14 purpose and that this purpose is not relevant to the 15 proceeding before us. In that case, your relevance 16 objection will be preserved, and you can make it. 17 MR. WARSHAWSKY: Thank you, Your Honor. I believe 18 that addresses our principal concern. 19 THE COURT: Okay. 20 MR. WARSHAWSKY: As the court I am sure is aware, 21 in the course of the eleven plus years we've had two 22 contempt trials. 23 THE COURT: That's kind of what I'm thinking of, 24 too. 25 MR. WARSHAWSKY: Exactly. 0040 1 THE COURT: All right. 2 MR. WARSHAWSKY: So it did strike us that 3 relevance would be the principal concern, and as you 4 described it, that makes sense, Your Honor. 5 If the court -- 6 THE COURT: Let's talk about this -- about the 7 issues Mr. Smith raised concerning who is an expert and who 8 was a 26(a)(2) expert. 9 The only thing that concerns me about that issue 10 is the question of imbalance that Mr. Smith suggests, that 11 is all the plaintiffs' experts almost by definition are 12 retained as experts, and on the other hand the government 13 has a lot of people that have been retained as consultants 14 or that have good working for the government on other 15 aspects of this thing, and you don't want to have them 16 designated as experts even if they have opinions. 17 There is some imbalance there if they are going to 18 have to give you statements, and CVs, and reports and so 19 forth from all of their experts and you don't have to give 20 any for yours. 21 MR. WARSHAWSKY: It is possible, Your Honor, we 22 may have read -- we may have read -- I am not sure if we 23 read too much into the wording of the plaintiffs' report. 24 Plaintiffs spoke -- the report included statements -- this 25 is on page five, paragraph sub-A, that the reports be 0041 1 required from employees who may be working on defendant's 2 historical accounting. 3 We have employees working. They do not fall 4 within the scope of Rule 26(a)(2). They are not specially 5 retained experts. They do not regularly provide expert 6 testimony. 7 Now -- and that was one of our principal 8 concerns, Your Honor, that basically we were concerned that 9 every employee who is working on the historical accounting 10 plan, or even yes, consultants who are working on the 11 historical accounting plan, who were brought in to provide 12 fact testimony, that the plaintiffs wanted expert report 13 from us. 14 I believe that Mr. Smith may have clarified this 15 for us. Certainly if a consultant -- one of the accounting 16 firm people, for example, one of the statisticians, if those 17 people are brought in to offer expert testimony, we would 18 consider them to be people, at least to the extent they are 19 providing the expert testimony, they are specially retained 20 people who are providing expert testimony. They would full 21 under Rule 26(a)(2). 22 Now if a consultant is brought in -- an accountant 23 who is there to testify about the process that he or she 24 goes through in reviewing a transaction, I'm not sure first 25 of all what the expert opinions are there, and that is a 0042 1 concern. 2 It should not apply to everybody employed -- or 3 I should say everybody who is a consultant to the 4 government. It should only apply were expert opinions are 5 involved. 6 As far as the notion -- I think one of the other 7 concerns that we had was the notion that the plaintiffs 8 would be allowed an additional month before providing us 9 with their expert reports. 10 Your Honor, again, I think in a case where the 11 plaintiffs -- I think we all understand that most of the 12 challenges, hopefully all of the challenges, are well known 13 in advanced, and certainly the challenges to the plan -- 14 this is an area within the plaintiffs' province to 15 determine. 16 There is no justification for having -- you know, 17 asking the government to wait an additional month to see 18 those reports. 19 We are trying to avoid surprise. We are trying to 20 preserve judicial resources and having as an efficient a 21 hearing as possible. The way to do that is by the provision 22 of the expert reports from the plaintiffs. 23 THE COURT: Okay. 24 MR. WARSHAWSKY: Your Honor I believe -- let me 25 just double check here. 0043 1 I will say, Your Honor, we are -- you know, the 2 request -- I should say just a moment about the TIF/PDF 3 issue that Mr. Smith spoke about. 4 The request for searchable TIF files is something 5 that came up during the course of our meet and confer 6 sessions. We are working on that trying -- and obviously we 7 will try to satisfy the plaintiffs. 8 I believe there are some technical limitations, 9 because as I understand it, and I am not a technical person 10 in this area, but in order to make these files searchable, I 11 believe in essence an optical character recognition, an OCR 12 application is run. 13 Some types of documents and some print is more 14 susceptible to accurate -- an accurate OCR scan then other 15 types. And that may be part of the problem. But, you know, 16 we will certainly work with the plaintiffs to resolve that 17 as best we can. 18 THE COURT: Thank you, Mr. Warshawsky. 19 MR. WARSHAWSKY: Thank you, Your Honor. 20 MR. SMITH: Your Honor, if I might be heard. 21 THE COURT: Yes, Mr. Smith. 22 MR. SMITH: Your Honor, as far as the experts, 23 what I understand from what Mr. Warshawsky said, which 24 differs slightly from what is in their proposed order, is if 25 anybody is going to provide an expert opinion, they will 0044 1 disclose them and provide a report, and that is what we have 2 asked for. 3 And if a witness does not provide a report, they 4 should not be allowed to -- or permitted to testify or 5 provide an expert opinion during the trial. 6 As far as the August 31 date for providing the 7 throughput and other information, we need enough time for 8 our experts to look at that and rebut that, if necessary. 9 August 31 is a little late for that. I think they have the 10 information available now. Our experts need to look at that 11 before they are designated. 12 As far as your suggestion about affidavits from 13 beneficiaries, I think that that is fine with us. If we 14 provide the affidavit and you determine that it is not 15 relevant or it is and they can go ahead and depose them if 16 they feel that is necessary. I think that is satisfactory 17 to us. 18 Regarding the past testimony and exhibits, we 19 agree with your suggestion. If it is relevant for any 20 purpose, whether it be substantive, or on credibility 21 issues, or whatever, it should be admissible. Otherwise 22 Your Honor will take care of that and exclude it. 23 As far as the format, this has been a long- 24 standing issue. During the 2005 trial we sat there with 2 25 million documents in unsearchable format where we had to 0045 1 print them off every night they came. 2 Certainly the government has this capability, has 3 the OCR capabilities, and we would request these documents 4 be produced in some sort of workable format other than what 5 we have had in the past, and we will continue to talk to Mr. 6 Warshawsky about that. 7 There is one other area that we feel needs some 8 documentation of, and we in the past have requested 9 electronic records regarding certain beneficiaries, and it 10 should be easy to produce if they are on their electronic 11 systems, so that we can review their documentation regarding 12 certain beneficiaries. 13 That was one of the items that Mr. Harper reminded 14 me that we would request -- probably request on August 6 if 15 Your Honor allows us. We feel that it's important for us to 16 do a complete review. 17 THE COURT: What is it that you want by August 6? 18 MR. SMITH: Your Honor, there are certain 19 beneficiaries where we would like their records so we could 20 look at the accounting that has been done as to them, and we 21 are just asking them for the electronic, period. 22 So if we provide a name, they should be able to 23 pull up the electronic records of those particular 24 beneficiaries, and we could provide a list next week of 25 those beneficiaries that we want. 0046 1 We are not asking them to go and research back to 2 the 1800s, simply provide the electronic records they have 3 for certain beneficiaries 4 THE COURT: How many? 5 MR HARPER: Can we consult for a moment, Your 6 Honor? 7 THE COURT: Yes. 8 (Whereupon, counsel conferred.) 9 MR. SMITH: Your Honor, 100, no more than 100. 10 THE COURT: Is there a problem with that, Mr. 11 Warshawsky? 12 MR. WARSHAWSKY: Yes we do, Your Honor. 13 This has already been proposed and briefed, and 14 again, this is an attempt to essentially conduct discovery 15 with respect to individuals in what is a class action to 16 review the adequacy of the accounting plan. It moves to a 17 different phase of the trial or the proceedings. 18 THE COURT: Yes, but I thought you were the great 19 proponents of sampling for testing? 20 MR. WARSHAWSKY: We are the great proponents of 21 sampling -- 22 THE COURT: Sampling for proving the adequacy of 23 an accounting. What are they asking for except a hundred 24 names? It is a sample. 25 MR. WARSHAWSKY: I am not sure precisely what 0047 1 they are asking for, but what I suspect they are asking 2 for is every document that we have related to 100 3 individuals. 4 THE COURT: Well, so far all they have asked for 5 is for you to push an electronic button and give you a 6 printout of what you have got for 100 people. That's not a 7 problem, is it? 8 MR. WARSHAWSKY: I think that the court has hit 9 on a very important distinction in talking about a sampling. 10 Sampling -- what the government has done -- what 11 we are proposed -- what we are the great proponents of is 12 sampling transactions to assess the reliability of business 13 records. 14 What the plaintiffs are talking about are 15 sampling accounts, and I am not sure what they are going to 16 do with it. But it very well may be that in the course of 17 picking an employee that there will be a tremendous effort 18 and cost involved in finding records related to that 19 individual. 20 THE COURT: They did not ask for records. They 21 asked for the printout. Whatever you have gotten 22 electronically. 23 MR. WARSHAWSKY: Well, again, we need to see 24 specifically what the requests are. We have had this 25 request once before, and that was part of the discovery that 0048 1 was before the court and which the court has already ruled 2 on. 3 And when this was submitted as a previous 4 discovery request, we set forth for the court the nature of 5 the burden that would be involved in responding to it. 6 THE COURT: Well, I mean -- Mr. Smith, get back up 7 here and tell me what burdensome thing you are asking for 8 here. 9 MR. SMITH: Your Honor, we are asking exactly for 10 what you said. For them to provide -- for us to provide 11 them with a list of a hundred beneficiaries, for them to 12 punch the button and produce the printout for those 13 beneficiaries that they have on their electronic records. 14 We are not asking them to go beyond the electronic era. 15 That is all we want 16 THE COURT: Tell us again why you want this? 17 MR. SMITH: Your Honor, I think it is important 18 for reviewing their process of statistical sampling to see 19 how this all plays out. 20 We ought to be able to look at a specific 21 beneficiary and compare it to what they are doing and see if 22 it makes any sense, unless they absolutely cannot do it, and 23 that would be shocking if they cannot do it. It is 24 certainly not very burdensome. It should not take more than 25 a couple of hours to print those off. 0049 1 MR. WARSHAWSKY: Your Honor, if I may? 2 THE COURT: Yes. 3 MR. WARSHAWSKY: We have moved into an area where, 4 frankly, Mr. Quinn is much more knowledgeable about the 5 burden that would be involved in this request, and I would 6 ask the court to hear Mr. Quinn on this. 7 THE COURT: Mr. Quinn. 8 MR. QUINN: Good afternoon, Your Honor. 9 With respect to the request that has just been 10 placed before the court, in the May 18 document request Your 11 Honor will recall that the plaintiffs have put forth before 12 the court I believe it was 38 names of individuals asking 13 for the individuals and their predecessor in interest and 14 all related transaction records concerning those 15 individuals. 16 In the second request asking for a similar type of 17 information for I think it was 50 named individuals who 18 presumably at least by the nature of the wording in the 19 request, were judgment account -- IM account holders or per 20 capita account beneficiaries. 21 In the course of responding to that request I had 22 occasion to talk to the special trustee for the American 23 Indians and representatives from the Treasury Department, 24 all of whom had prepared descriptions of what would be 25 necessary to go through and look up those records. 0050 1 Even with respect to -- you have to be careful 2 when there is a request with respect to pressing a button. 3 It is not like pressing one computer and getting -- you may 4 get a series of some account numbers, but those may be 5 married to account numbers that are in another office in 6 another location, and that is part of the accounting process 7 that is being undertaken. 8 In the electronic era the experience here is that 9 each reconciliation has caused several thousand hours to 10 pull the substantially documents, marry them up to the 11 electronic ledger. So it is not just a pressing button and 12 having those pop out. 13 And I would want to be very clear on specifically 14 the information the plaintiffs are expecting to get here 15 before we say where this could be accomplished in time for 16 October 10. 17 Because if you go back to the record of the 18 request that they filed on May 15 and look at the 19 government's response to those requests, you will see that 20 there is a very elaborate, detailed effort to specify the 21 identification of records. 22 And this is not to be unexpected. The records in 23 the occasion when they were creating the transactions 24 originally, it was not -- the record keeping was not 25 structured in the fashion to pull all of these individual 0051 1 pieces of paper together. 2 That has been the reason for the creation of the 3 American Indian Records Repository. It is part of the 4 effort to index those documents, but it is a very time- 5 consuming and laborious task, which is one of the reasons 6 why the department has established transaction sampling, 7 because of the costs versus the accuracy in terms of 8 rendering the accounting for everyone who has had an account 9 in the class. 10 So I would just caution the court that it is not 11 just like pushing a button on your home computer and 12 printing out a particular document. It is a very involved 13 labor-intensive effort that relies on a number of people in 14 a number of offices across the department, particularly 15 within the Office of Special Trustee. 16 THE COURT: Mr. Smith, do you know -- I'm sitting 17 here trying to find this May 15 -- 18 MR. HARPER: Your Honor, may I speak to this 19 issue? 20 THE COURT: Sure, Mr. Harper. 21 MR. HARPER: Good afternoon, Your Honor. 22 I think the question is in the first instance, 23 what are we asking for now as to what we asked for before? 24 What we wanted before was all the information that the 25 defendants had, weather in electronic format or in paper 0052 1 format. 2 What they responded to in that was how laborious 3 of a task it was going to be to do what Mr. Quinn just 4 stated, that is match up each and every transaction with 5 each and every documentation going back for however many 6 years. 7 They said that that would be too difficult and 8 cost millions of dollars, and not withstanding how that may 9 be highly important as an inferential matter to the state of 10 their records, the court made its ruling in that regard. 11 What we are asking for here is far narrower. It 12 is merely those electronic records on their system. For 13 example, they have three systems that are possibly 14 implicated, maybe a couple of more. 15 The integrated resource management system called 16 IRMS for short. The land records information system, also 17 referred to as LRIS, and the various forms of TAAMS, which 18 is a system that they are moving some of the documents to. 19 This information may be on one or more of these 20 systems for each of these beneficiaries. What we are saying 21 is that that electronic information contained on those 22 databases, we are just asking for them to just download 23 those and to provide those -- provide that information which 24 is on their systems. 25 We are not asking them go back and trace the 0053 1 leases and get us the background lease documents. That may 2 be something for another juncture or for another trial. 3 We understand what the court has stated for this 4 trial is that that would not be the assessment for this 5 trial. So we understand that, Your Honor. But we, at a 6 bare minimum, have the capability to look at their 7 exclusions and determine whether or not those exclusions are 8 reasonable. 9 The way to do that is to look, among other things, 10 at the information on the database to figure out what is 11 there and what is not there, and then compare that to other 12 information to the extent that we can find it. 13 That goes directly to the scope of their 14 accounting. That goes directly to the issues identified by 15 this court that will be tried, and it is not burdensome at 16 all, because it is merely electronic information, not the 17 underlying transactional documents, not the underlying lease 18 documents and things of that nature. 19 So we believe, Your Honor, because the burden is 20 slight and the information is relevant, at a bare minimum 21 the plaintiffs should have the right to such information. 22 MR. QUINN: Your Honor, if I may? 23 THE COURT: Sure. 24 MR. HARPER: Thank you, Your Honor. 25 MR. QUINN: We are somewhat taken by surprise. 0054 1 This is not an issue that was at all raised in our 2 conference prior to -- in preparation of coming together on 3 agreement of the schedule for the October 10 hearing. So 4 we are kind of having to react to this request on the fly 5 here. 6 I guess if the court is at all inclined to 7 entertain this as a possible project that the plaintiffs be 8 required to specify exactly what it is that they are looking 9 for. 10 One question that comes off at the very beginning 11 is not just identifying individuals. When they identified 12 individuals in their May 18 request, they named names. No 13 addresses. No account information. And in going to those 14 records, you could have three people with the same name. 15 Abbreviated names. Change of names. Spousal names. 16 All of this without the account information, the 17 account numbers, it does create a very difficult task just 18 as far as identifying the correct information. 19 But plaintiffs are referring here to a sample of 20 their own choosing. The sample, I would submit to the 21 court, Your Honor, has been chosen. At the time plaintiffs 22 filed this complaint, they had named representative 23 plaintiffs chosen. 24 They put those names before the court. Judge 25 Lamberth and the court reviewed those plaintiffs for their 0055 1 adequacy, for the typicality of their situation, and the 2 terms of the representative nature of their class. 3 There has also been extensive discovery in the 4 production of documents and the availability of records made 5 for the named plaintiffs as well as their predecessors in 6 interest. 7 This is a wholly new group. We don't even know 8 the name at this point of who would be in this sample. But 9 they are not -- have not gone through that process, Your 10 Honor, of being tested for their representative status, 11 whether their circumstances are representative of the class 12 as a whole. 13 I would submit that there is nothing that the 14 plaintiffs have put forth here at this point at least to 15 demonstrate that the circumstances of any of these 16 individuals would represent the larger class as a whole. 17 And to the extent we need a sample I would say to Your Honor 18 that there is a sample already selected, and those are the 19 named certified class representatives. 20 THE COURT: All right. First of all, I will 21 permit the plaintiffs to file a discovery request for either 22 the downloaded or printed out electronic information that 23 may exist in IRMS, LRIS or TAMS for not more than 100 names 24 of the plaintiffs' choosing. 25 I want to reassure the government here that I 0056 1 think I am capable of -- I mean if and to the extent these 2 are the hundred people selected for their obscurity to prove 3 that you have not been doing your job, I can sniff that out 4 pretty well. 5 But the plaintiffs are certainly entitled in their 6 way in this proceeding to essentially test what you have 7 got, and I think that is the way they are choosing to do it, 8 and this is not going to go beyond that to background 9 records, and archives, and documents, and running these down 10 any further, but I will take the request as made in good 11 faith on its face for electronic data, and that is what they 12 are going to ask for, and that is what they are going to 13 get. 14 But they have to ask for it formally and precisely 15 enough. And if all you get are names and you say, we cannot 16 respond to that, then that is what your response would be. 17 We cannot respond to that, it is just names. 18 MR. WARSHAWSKY: Your Honor, for clarification. 19 Again, as Mr. Quinn indicated, this is a new issue. It has 20 just come up today. We have not had a chance, obviously, to 21 assess the burden that will be associated with retrieving 22 this information, and we would like to have an opportunity 23 to respond to the discovery request and to present any 24 appropriate objections. 25 THE COURT: Well, that is why it will be a 0057 1 discovery request, Mr. Warshawsky. 2 MR. WARSHAWSKY: Thank you, Your Honor. 3 THE COURT: Now trying to put together the 4 schedule that falls out of this proceeding this afternoon, 5 it seems to me that the following dates make sense. 6 By August 6 the plaintiffs will identify what 7 they see as deficiencies in the government's 2007 plan. 8 Eleven days later -- and I don't know when the seventeenth 9 falls, but eleven days later the government will respond. 10 MR. WARSHAWSKY: I am sorry, Your Honor. You are 11 referring to deficiencies in the administrative record? 12 THE COURT: Yes. I'm talking about the 13 deficiencies in the administrative record. 14 This business of whose experts go first, I think 15 we are going to resolve this way. There are going to be two 16 rounds of expert disclosures, both simultaneous. 17 The parties will designate experts initially on 18 August 17, and 30 days later they can designate responsive 19 experts to what have been designated by the other time, also 20 simultaneously. 21 By August 31 the parties are going to exchange 22 trial exhibits, and in the government's case that will 23 include exhibits that will support their positions on what 24 we have been calling the cost and throughput issues. 25 Will I order pretrial statements? Yes. There is 0058 1 a form for it in the local rules. I am not a slave to that 2 form. It can get pretty detailed, but I want to know 3 basically by that time what you all think are the issues, 4 what witnesses you think you are going to call, what 5 witnesses you think -- well you have already exchanged your 6 trial exhibits. 7 Motions in limine by September 21. Final pretrial 8 conference on September 28. 9 What is left to be put off to another day, the 10 discussion of it that is -- what have I left out? 11 MR. WARSHAWSKY: Your Honor, I don't think you 12 have left anything out, but the one thing I wanted to 13 clarify, I understood -- or I wanted to make sure there is 14 clarity on this, but the government -- I think Mr. Smith 15 indicated that the government had agreed that all experts 16 would be subject to Rule 26(a)(2). 17 The government's position remains that 18 26(a)(2)applies to a special category of experts. It is 19 especially retained or specially employed experts and 20 employees whose job is regularly providing testimony. 21 It is possible that there will be individuals who 22 do not fall within that category who will give testimony 23 that ends up having an opinion nature to it, but that does 24 not mean that those people should be subject to the rigorous 25 requirements of 26(a)(2). 0059 1 THE COURT: You are backtracking on what you said 2 here 10 minutes ago about how all of your experts -- if you 3 are going to call them as experts, you will provide the 4 statements on them. 5 I take you at your word and think that you will do 6 that. 7 MR. WARSHAWSKY: We will. 8 THE COURT: If what you're doing is leaving 9 yourself a trapdoor for something that might turn out to be 10 a piece of opinion testimony, duly noted. There will be an 11 objection, and I will rule on the objection at trial. I 12 cannot do all of that in advance 13 MR. WARSHAWSKY: Well, I am not trying to leave a 14 trapdoor, Your Honor, but I did want to make clear. We 15 understand the types of witnesses that Mr. Smith spoke about 16 when he spoke, for example, about accountants offering 17 opinions and statisticians. 18 Yes, we expect to offer them as experts, and we 19 expect to have them providing -- at least where they are 20 providing opinions, they will provide reports. 21 THE COURT: All right. Well, I think you are 22 making -- I think you are taking kind of a hypothetical 23 save, and that that is what lawyers do, in particular what 24 good lawyers do, and I hear you and we will deal with that 25 at trial. 0060 1 MR. WARSHAWSKY: Thank you, Your Honor. 2 THE COURT: Are we done here? 3 MR. SMITH: Your Honor, if I may? 4 THE COURT: I should never ask that question. Not 5 where David Smith is concerned 6 MR. SMITH: Your Honor, just a point of 7 clarification. 8 We have August 31 for disclosure of pretrial 9 exhibits, but it is -- I think it is September 16 for 10 disclosure of any response of experts, for want of a better 11 word. 12 THE COURT: Yes. 13 MR. SMITH: Yet under our stipulation at that time 14 under Rule 26 those experts should be identifying experts -- 15 identifying exhibits upon which they are relying for their 16 opinion. 17 THE COURT: Yes. 18 MR. SMITH: So would that be a supplementation? 19 THE COURT: The experts -- I mean exhibits on 20 which experts are relying are not necessarily trial 21 exhibits. 22 MR. SMITH: Right. I think under Rule 26 they are 23 supposed to -- at the time of designation they are supposed 24 to identify the documents they will use as exhibits. 25 THE COURT: You may have until the later date to 0061 1 identify documents that are specific to an expert if that 2 expert is identified as a responsive expert. 3 MR. SMITH: Okay, I understand. 4 Also, as far as the throughput information, we 5 will see that for the first time at the time exhibits are 6 proffered. 7 THE COURT: That is right. 8 MR. SMITH: Can we have time to prepare exhibits 9 in response to that, say 10 days later? 10 THE COURT: Sure. 11 MR. SMITH: Okay. I take it under your rule there 12 is no provision for depositions of experts? Is that 13 correct? 14 THE COURT: I did not say anything about 15 depositions of experts. I have a feeling that that has sort 16 of fallen out of the equation. 17 MR. WARSHAWSKY: Your Honor, if I may, I think Mr. 18 Smith said it well. The advisory committee notes to 19 26(a)(2) I believe indicates that expert reports should be 20 complete enough -- or someone's advisory committee notes I 21 recall say this, that reports should be complete enough that 22 a deposition really is not necessary and provided they are, 23 done, we can let it go. 24 THE COURT: Good. 25 MR. SMITH: I think that is correct, Your Honor. 0062 1 THE COURT: And the affidavit point, I think the 2 affidavit idea is a good idea. You can proffer affidavits. 3 The question is when you proffer the affidavits. 4 I don't know how many affidavits you are talking 5 about. Can you manage that at the same time as you get the 6 trial exhibits in, Mr. Smith? 7 MR. SMITH: We can do that. 8 THE COURT: Fine. Then that gives everyone time. 9 MR. SMITH: Your Honor, there was an issue raised 10 in the party's responses regarding problems with expert fees 11 as a past issue. That is not going to be raised this time 12 since there is not going to be depositions of experts, but 13 perhaps at some point in the future we may need to raise 14 that with the court. I think it is an outstanding issue 15 THE COURT: Okay. Thank you counsel. 16 MR. WARSHAWSKY: Your Honor, one last question. 17 I'm not trying to be a typical lawyer. 18 With response to time frame for responding to the 19 de bene esse notices. Can we request ten days? Or we would 20 request ten days. 21 THE COURT: I am sorry, say that again? 22 MR. SMITH: When we received the list of de bene 23 esse witnesses, the proffers -- 24 THE COURT: Yes. 25 MR. WARSHAWSKY: The government would request ten 0063 1 days to respond. 2 THE COURT: That is fine. 3 MR. SMITH: Could we have eleven, Your Honor? 4 THE COURT: Eleven. Eleven it is. 5 MR. WARSHAWSKY: Eleven. Thank you. 6 THE COURT: I want you all to know that although I 7 am -- I like to make myself generally available for 8 discovery disputes, we are not having discovery or any other 9 kinds of disputes. There is a significant period of time 10 here between this weekend and early August when I am not 11 going to be around. So you are just going to have to get 12 along and play pretty between now and about the eighth or 13 tenth or twelfth of August. 14 All right, thank you. 15 (Whereupon, the proceedings were adjourned.) 16 - - - - - 17 CERTIFICATE OF COURT REPORTER 18 I certify that the foregoing is a correct transcript of 19 the proceedings in the above-captioned case. 20 ___________________________ 21 SUSAN PAGE TYNER, CVR-CM 22 OFFICIAL COURT REPORTER 23