IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ REPLY IN SUPPORT OF 
MOTION FOR A PROTECTIVE ORDER REGARDING 
PLAINTIFFS’ NOTICE OF DEPOSITION OF JAMES CASON AND 
REQUEST FOR PRODUCTION OF DOCUMENTS 
On October 29, 2003, Plaintiffs noticed the deposition of James Cason, the Associate 
Deputy Secretary of the Department of the Interior, for December 4, 2003 (“Notice of 
Deposition”).1 The Notice of Deposition included two requests for production of documents. In 
a Motion for Protective Order filed on November 26, 2003 (“Motion”), Defendants demonstrated 
that good cause exists for an order preventing the deposition of Mr. Cason and relieving 
Defendants of any obligation to respond to the two related requests for production of documents.2 
In their Opposition to the Motion (“Opposition”), filed on December 10, 2003, Plaintiffs are 
1/ Although Defendants accurately noted in the Motion that Plaintiffs had noticed the deposition 
“without any prior communication to counsel for Defendants,” Motion at 1, the quotation recited 
in Plaintiffs’ Opposition relating to this Court’s admonition to confer before a deposition is 
noticed appears nowhere in Defendants’ Motion. See Opposition at 2 n.1. 
2/ Because the Motion was not granted before the time under Federal Rule of Civil Procedure 
34(b) to respond to the document requests expired, on December 1, 2003, Defendants served 
Responses and Objections to Plaintiffs’ Request for Production of Documents Attached to the 
Notice of Deposition of James Cason (attached as Exhibit 1).
unable to show a right to the deposition – or even a need for such a deposition at this time.3 
Defendants’ Motion should be granted. 
ARGUMENT 
NO DISCOVERY IS AUTHORIZED AT THIS TIME I. 
Relying upon the Federal Rules of Civil Procedure and the Court’s October 17, 2002 
Phase 1.5 Trial Discovery Order, Defendants demonstrated in the Motion that no discovery is 
appropriate or permissible at this stage of the litigation. In response, Plaintiffs rely exclusively 
upon the language of the Court’s September 17, 2002 Order restoring certain discovery rights 
that had been previously denied to them in this case. They contend that the September 17, 2002 
Order somehow conferred upon them “unfettered” discovery rights and surprisingly argue that 
Defendants have not identified any order which restricts their discovery now that the Phase 1.5 
trial has concluded. Opposition at 7. Plaintiffs have unaccountably chosen to ignore the 
language in the Federal Rules and the October 17, 2002 Order, discussed in the Motion, that 
unambiguously restricts Plaintiffs’ discovery rights. 
The September 17 Order merely restored the usual discovery rights that had been denied 
Plaintiffs by a previous order. After entry of the September 17 Order, Plaintiffs were in the same 
position as any other litigant with regard to their discovery rights. On October 17, 2002, the 
Court signed a Phase 1.5 discovery scheduling order. See Phase 1.5 Discovery Schedule Order 
3/ Plaintiffs’ paper is styled as both an opposition and a motion to compel. On December 16, 
2003, Plaintiffs filed an unopposed Notice of Withdrawal of the motion to compel, but because 
the proposed order accompanying the Notice has not been entered Defendants will file an 
opposition to the motion to compel in a separate paper. 
2
(October 17, 2002). Pursuant to that Order, fact discovery closed on March 24, 2003,4 and all 
discovery terminated on April 10, 2003. Plaintiffs do not, and cannot, explain how the 
September 17 Order granted them discovery rights that exceed the limits established by the 
Court's subsequent scheduling order. There is no other order granting Plaintiffs the right to take 
discovery and Plaintiffs cite none in their Opposition. 
Plaintiffs are also bound by the Federal Rules, which forbid discovery prior to a Rule 
26(f) planning conference, as described in the Motion.5 See Fed. R. Civ. P. 26(d). The parties 
have not held a discovery planning conference on any post-Phase 1.5 proceeding. Therefore, 
discovery has not commenced for any subsequent proceedings and Plaintiffs are precluded from 
requesting documents and noticing depositions without leave of Court.6 Id.; Fed. R. Civ. P. 
30(a)(2)(C). 
PLAINTIFFS FAIL TO IDENTIFY ANY RELEVANT DISCOVERY THEY SEEK II. 
Plaintiffs’ Opposition also reveals a fundamental misunderstanding about the type of 
information that is discoverable in this case. Plaintiffs claim that they need the noticed 
4/ The close of fact discovery was subsequently extended by the Special Master-Monitor until 
March 28, 2003. 
5/ One exception to this prohibition is that Rule 27(b) permits a district court to allow, upon 
motion that sets forth certain prescribed information, the taking of depositions of witnesses to 
perpetuate testimony “for use in the event of further proceedings in the district court,” pending 
appeal of a judgment. Fed. R. Civ. P. 27(b). Plaintiffs have not filed any such motion to take the 
depositions noticed here and therefore have obviously not met the requirements of Rule 27. 
6/ To the extent Plaintiffs are seeking discovery for the purpose of investigating potential 
criminal contempt allegations, see, e.g., Opposition at 3, 7, 8, this Court’s decision in Landmark 
Legal Foundation v. EPA, 272 F. Supp. 2d 70, 76-77 (D.D.C. 2003), makes clear that the 
Plaintiffs cannot assume a prosecutorial role. See also Young v. United States ex rel. Vuitton et 
Fils, S.A., 481 U.S. 787, 814 (1987) (reversible error to appoint the attorney for an interested 
private beneficiary as prosecutor of contempt allegations). 
3
deposition of Mr. Cason because all information material to the management of the IIM trust “is 
the property of the trust beneficiaries who have a right to such information irrespective of 
litigation as [sic] matter of law.” Opposition at 10; see also id. at 13 (“What is attainable by a 
beneficiary of a trust regarding the trust administration is far different from the ordinary 
litigant.”) Even if applicable restrictions on discovery in APA cases were disregarded,7 
Plaintiffs’ attorneys are not entitled to use the Federal Rules of Civil Procedure to discover all 
information that might otherwise be obtainable by an IIM trust beneficiary. They represent the 
certified class of IIM beneficiaries only with respect to the issues and claims in this lawsuit. 
Simply alleging that a beneficiary has a right to certain information about the IIM trust is not 
enough to make that information relevant to this lawsuit, and thus discoverable under the Federal 
Rules. If beneficiaries believe that they have a right under trust law to certain information they 
should ask the appropriate Interior official for that information in the ordinary course of business. 
The Plaintiffs in this class action, however, are not entitled to use the formal discovery 
mechanisms in the Federal Rules to gather information that beneficiaries would merely like to 
obtain. The requested information must be relevant to an issue in this litigation.8 
7/ Plaintiffs acknowledge in their Opposition that discovery is impermissible in APA cases, but 
argue that such a restriction should not apply here because this case is “not an APA case where 
discovery restrictions apply.” Opposition at 10. Defendants are unaware of any uniqueness 
exception in the APA that would permit otherwise unauthorized discovery in any APA case that 
a plaintiff designates as special. In short, the restrictions on discovery in all APA cases apply 
with equal force to this APA case, notwithstanding its supposedly unconventional status. 
8/ Plaintiffs are surely aware of the relevancy requirement because they quote the appropriate 
language from Rule 26(b) in their Opposition. Opposition at 5. They are also surely aware of the 
issues in this case because they were framed in the Complaint filed by Plaintiffs. It is therefore 
puzzling that at this late date Plaintiffs are apparently still unaware that information relevant to 
the IIM trust is not coextensive with information relevant to the issues in this case. 
4
In their Opposition, Plaintiffs allege that Mr. Cason has personal knowledge of 
information related to the management and administration of the IIM trust. See Opposition at 2. 
However, Plaintiffs do not, and cannot, explain how any information they could possibly elicit 
from Mr. Cason would be relevant to a claim that is being litigated in any current proceeding 
requiring discovery. 
As Defendants have discussed repeatedly, there are no current proceedings that require 
discovery. However, even if this changes, Plaintiffs would only be entitled to the discovery of 
information related to the claims at issue in such a proceeding. They are not entitled to discover 
any information they seek merely because it has some relation to the IIM trust. 
III. PLAINTIFFS HAVE NOT MADE THE NECESSARY SHOWING TO DEPOSE 
THE ASSOCIATE DEPUTY SECRETARY OF THE DEPARTMENT OF THE 
INTERIOR 
In any event, even if the requested beneficiary information were somehow relevant to an 
issue in this lawsuit, Plaintiffs do not explain why they need to start with a deposition of the 
Associate Deputy Secretary of the Interior to try to obtain such information. As discussed in the 
Motion – and applied in an earlier order of this Court – before Plaintiffs may take the deposition 
of a high ranking government official they are required to identify the specific information that 
they would seek in such a deposition and show that they unsuccessfully tried to obtain this 
information from some other source. See Motion at 3-5. 
Plaintiffs contend that only cabinet officials and agency heads are protected from 
deposition by this rule. See Opposition at 12. They argue that Mr. Cason is not such an official 
and is therefore not high ranking enough to fall within the ambit of this rule because he is not the 
5
ultimate “decision-maker.”9 See id. at 11-12. Plaintiffs have misconstrued the nature of the rule. 
“Although most cases apply to agency heads, the rationale applicable to the protection of agency 
heads is equally applicable” to other high ranking executive officials. Alexander v. FBI, 186 
F.R.D. 1, 4 (D.D.C. 1998). The rule applies where “there is a substantial likelihood that 
depositions would significantly interfere with their ability to perform their governmental duties.” 
Id. 
As Associate Deputy Secretary, Mr. Cason shares authority and responsibility at the 
Secretarial level for the oversight and management of the Department of the Interior’s Indian 
trust and associated reform efforts. As such, having his deposition taken every time Plaintiffs 
want to learn general information about the nature of the management and administration of the 
trust – without regard to whether such information is relevant to a particular claim in this lawsuit 
– would necessarily interfere with his ability to perform his governmental duties. As applied 
earlier in this case to the Interior Chief-of-Staff and Deputy Solicitor, before Plaintiffs may take 
the deposition of the Associate Deputy Secretary, they should first “be required to provide 
evidence demonstrating and proving: (A) that Plaintiffs have an extraordinary need for [this] 
particular [deposition]; and (B) that the precise information they seek from [this individual] is 
available from no other source.”10 Order of March 25, 1999. 
9/ Plaintiffs’ attorneys also continue to pursue their regrettable policy of personal attack, 
eschewing persuasion in favor of insult, substituting ad hominem vitriol for legitimate argument. 
See Opposition at 11 (referring to the Associate Deputy Secretary of the Interior as a 
“munchkin”). Defendants remain hopeful that the Court will direct Plaintiffs’ attorneys to end 
this disgraceful, demeaning, and unethical litigation stratagem. 
10/ Plaintiffs also claim, without citation, that Mr. Cason somehow “waived” the right to apply 
this principle because he has previously testified in this case and before Congress. Opposition at 
11 n.11. Plaintiffs’ argument reveals that they do not understand the nature of the rule. The 
6
CONCLUSION 
For these reasons, Defendants’ Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: December 18, 2003 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
principle that high government officials should not testify is not an absolute shield but rather is 
dependent upon the circumstances under which the testimony is sought. It is not an argument 
that Plaintiffs could never get the testimony, but rather that each time they try to get deposition 
testimony from a highly ranked government official they have to meet the prerequisites, i.e. (1) 
identify the specific information they wish to elicit, and of which the official could reasonably be 
expected to have personal knowledge, and (2) show that the information was unobtainable from 
some other source. An official’s testifying once in a proceeding cannot “waive” Plaintiffs’ 
obligation to meet this standard the next time, and every time, that they seek to obtain specific 
information from that official by taking his deposition. 
7
CERTIFICATE OF SERVICE 
I hereby certify that, on December 18, 2003 the foregoing Defendants’ Reply in Support 
of Motion for a Protective Order Regarding Plaintiffs’ Notice of Deposition of James Cason and 
Request for Production of Documents was served by Electronic Case Filing, and on the following 
who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston