<< COB0000001 >>
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV01285
	)	(Special Master Alan Balaran)
GALE NORTON, Secretary of the Interior et ~L,	)
	)
Defendants.	)
INTERIOR DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION
FOR RELEASE OF THE REPORT OF THE SPECIAL MASTER REGARDING IT
SECURITY AND ANY INFORMATION REPORTED TO THE COURT
REGARDING TIlE SPECIAL MASTER'S INVESTIGATION OR REPORT
	In their Motion and Supporting Memorandum/or Release of the Report of the Special
Master Regarding IT Security and Any hiforination Reported to the Court Regarding the Special
Master ~ Investigation or Report, the Secretary of the Interior and the Assistant Secretary -
Indian Affairs ("Interior Defendants") seek release of the Special Master's report regarding his
investigation of Interior's Information Technology systems and provision to the parties of any
information the Special Master reported to the Court regarding his investigation or report.
Plaintiffs' assertion in their Opposition that Interior Defendants are not entitled to this
information requires them to disregard the plain meaning of the Court's February 24. 1999 Order
appointing the Special Master and advocate a tortured reading that is inconsistent with other
provisions of the Order and with common sense.
<< COB0000002 >>
	Paragraph 8 of the Court's February 24, 1999 Order provides that "[ajny information
reported to the court by the special master shall also be reported to counsel for the parties."'
Order, Feb. 24, 1999, at ¶ 8. Plaintiffs insist that this provision requires that the parties receive
only information the Special Master provides to the Court in the form of a formal "report."
Unlike paragraph 8, each of the preceding five paragraphs of the Order expressly refers to
"reports" that the Special Master is to "file" or "submit" to the Court. 14~ at ¶¶ 3-7. In marked
contrast, paragraph 8 of the Order authorizes the Special Master to "call to the [Cjourt's attention
any matter that bears upon the defendants' compliance with any order of this [C]ourt or any other
applicable discovery rule." j4, at ¶ 8. Paragraph 8 makes no mention of a formal "report" to be
"filed" or "submitted." Indeed, if paragraph 8 required a formal report as Plaintiffs suggest, the
Special Master presumably would be unable to communicate such information to the Court
except through a formal report. The very next sentence in paragraph 8 makes clear that any
information communicated to the Court by the Special Master must also be provided to the
parties: "Any information reported to the court by the special master shall also be reported to
counsel for the parties." Id. (emphasis added).
	Courts and commentators have recognized the dangers inherent in ex parte
communications between special masters and courts. The May 2001 Report of the Civil Rules
Advisory Committee, addressing proposed changes to Rule 53, recognized that "[e]x parte
communications between a master and the court present troubling questions," and advised that
	Nearly a frIl page of Plaintiffs' Opposition is devoted to complaining (incorrectly, it
turns out) that Interior Defendants' page cite to this provision of the February 24, 1999 Order is
wrong. ~ PIs.' Opposition at 5. Plaintiffs insist that the proper citation to this provision in the
Court's three-page Order is "page 4." Id. To avoid further confusing Plaintiffs' counsel, this
Reply will cite the Court's Order by paragraph rather than page.
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"[0] ften the [appointing] order should prohibit such communications, assuring that the parties
know where authority is lodged at each step of the proceedings." Advisory Committee on the
Federal Rules of Civil Procedure, "Report of the Civil Rules Advisory Committee" at 143 (May
14, 2001, as revised July 31, 2001) (available at www.uscourts.~ov/rules/comment2002 (select
S-OICV.pdf from menu)); see also Margaret 6. Farrell, The Role of Special Masters in Federal
Litigation, SGO4G ALl-ABA 1005, 1038 (2002) ('~[W]here the purpose of the appointment [of a
special master] is to obtain the master's recommended findings of fact, ex parte communication
[between the master and the judge] would seem inappropriate to discuss the performance of the
master's duties since the judge will review those findings and the record upon which they are
based to determine whether they are clearly erroneous. Information outside the record could
prejudice that review."); Wayne D. Brazil, Special Masters in Complex Cases: Extending the
Judiciary or Reshaping Adjudication?, 53 U. Chi. L. Rev. 394, 413-14 (1986) ("Off-the-record
communication between master and judge also risks creating the impression that the master is
unduly influencing the court. Parties could justifiably object that such cx parte communication
deprives litigants of an opportunity to challenge the information and ideas that might influence
the court's subsequent decisions."); cf. 18 U.S.C. § 3626(fJ(6)(B) (prohibiting special masters
appointed in federal civil actions regarding prison conditions from "mak[ing] any findings or
communications ex parte").
	The Seventh Circuit addressed similar concerns in Edgar v. K.L., 93 F.3d 256 (7th Cir.
1996) (per curiam). There, the district court appointed a panel of three experts to investigate the
mental health care system of Illinois. The district court judge held at least one ex parte meeting
with the panel at which the merits of the case were discussed. When the defendants sought to
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<< COB0000004 >>
learn more about the meeting through depositions, the judge quashed subpoenas issued to the
participants, invoking 'judicial privilege" to shield the substance of the communications. Id. at
258. The Seventh Circuit not only found the private meeting improper, but also found it grounds
for disqualifying the district court judge under 28 U.S.C. § 455. I~ at 259. The Court noted that
the order appointing the panel (like the Special Master's appointing order in this case) permitted
the "Manager," who was appointed to coordinate and facilitate the investigation and reports of
the panel, to "report to the Court and the parties," but not to report to the judge in secret. Id.
Noting that 28 U.S.C. § 455 is principally concerned with knowledge that is "extrajudicial" in the
sense that the judge acquires it outside the courthouse, the Scvcnth Circuit concluded that "[tihe
point of distinguishing between 'personal knowledge' and knowledge gained in a judicial
capacity is that information from the latter source enters the record and may be controverted or
tested by the tools of the adversary process[j [kjnowledge received in other ways, which can be
neither accurately stated nor fully tested, is 'extrajudicial."' Id. The court explained:
Off-the-record briefings in chambers . . . leave no trace in the
record — and in this case the judge has forbidden any attempt at
reconstruction, What information passed to the judge, and how
reliable it may have been, are now unknowable. This is 'personal'
knowledge no less than if the judge had decided to take an
undercover tour of a mental institution to see how the patients were
treated. Instead of going himself, this judge appointed agents, who
made a private report of how they investigated and what they had
learned. Mandatory disqualification under § 455(b)(1) follows.
Id.
	Special masters, of course, are not court-appointed experts. But where, as here, a special
master conducts an investigation, he is "functioning like a court-appointed expert (Or a
continental judge), but without the procedural safeguards that check the reliability of an expert's
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<< COB0000005 >>
reasoning and conclusions," as experts "may be targeted for pretrial discovery. may be deposed,
and usually testify at trial, where they are subject to full cross-examination." Brazil, 53 LI. Chi.
L.	Rev, at 41 8. Furthermore, a court-appointed expert's work enjoys no presumption of
correctness, but a special master's findings of fact are reviewed for clear error. Id. Thus, the
risks inherent in a court's ex pane communication with a special master are, in some respects,
even greater than the risks inherent in communication with court-appointed experts (such as
those appointed in Ed~ar).2
	Here, such concerns are addressed to some extent by the Court's Order requiring any
information provided to the Court by the Special Master to be provided to the parties. Order,
Feb. 24, 1999, at ¶ 8. Although the Interior Defendants should not be required to file a motion to
	2 Plaintiffs cite three inapposite cases for the proposition that ex pane communications
between a special master and the court are privileged and confidential: Terrazas v. Slagle, 142
F.R.D. 136 (W.D. Tex. 1992), which prohibited depositions ofiudges' law clerks; a concurring
opinion in Grutter v. Bollin~er, 288 F.3d 732 (6th Cir. 2002) petition for cert. filed, 71 U.S.L.W.
3154 (U.S. Aug. 9, 2002) (No. 02-241), in which one judge criticized another judge on an
appellate panel for publicizing disagreements over the internal workings of the court that did not
directly affect the legal principles at issue in the case; and Mumford v. Basiuski, 105 F.3d 264
(6th Cir. 1 997), in which the court determined that an Ohio domestic relations court referee held
an inherently political post that was not safeguarded from political patronage termination in part
because he had a confidential relationship with the judges he served. Neitherjudges'
communications with law clerks (as in Terrazas) nor appellate judges' communications with each
other (as in Grutter) raise the concerns inherent in a judge's ex pane contacts with a special
master. Judicial law clerks are simply staff employees of the court; they arc not authorized to
conduct investigations, issue reports, or make findings of fact that the court must formally review
on the record. Nor are special masters and the judges who appoint them analogous to appellate
panels ofjudges who must deliberate among themselves to reach a decision in a case. A state
domestic relations court referee is slightly more analogous to a special master, but the court in
Mumford stated that "Ohio law expressly assigns some discretionary adjudicative authority to the
referees, permits Ohio judges to delegate other adjudicative powers to the referees, and provides
that the referees shall proffer advice ('often in co;~fidence,) to the judges concerning the
disposition of cases and other legal controversies." Mumford, 105 F.3d at 273 (emphasis
added). Ohio law is not applicable here, and no applicable federal law provides that a special
master shall proffer advice in confidence to a district court judge.
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<< COB0000006 >>
receive such information, for the reasons set forth above and in their Motion and Supporting
Me~norandum for Release of the Report of the Special Master Regarding IT Security and Any
Information Reported to the Court Regarding the Special Master 's Investigation or Report,
Interior Defendants respectfully request that the Special Master provide to the parties any
information (including any interim report or draft) he has provided to the Court regarding his
investigation of Interior's Information Technology systems.
Dated: September 16, 2002	Respectfully submitted,
ROBERT D. McCALLIiJM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
SAND P. SPOONER
D.C. Bar No. 261495
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
CYNTHIA L. ALEXANDER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
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<< COB0000007 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on September 16, 2002 1 served the foregoing
Interior Defendants 'Reply in Support of Their Motion for Re/ease of the Report of the Special
Master Regarding IT Security and Any Information Reported to the Court Regarding the Special
Master i~ Investigation or Report by facsimile upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, NW.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
(202) 822-0068	Washington, D.C. 20004
	(202) 318-2372
and by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Copy by Facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
By U.S. Mail upon
Joseph S. Kieffer, III
Court Monitor
420 7th Street, N.W.
Apartment 705
Washington, D.C. 20004
Kevin P. Kingston