This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA t Y 7 * r I ,>A 
ELOUISE PEPION COBELL, gt al., 
Plaintiffs, 
V. 
GALE NORTON, Secretary of the Interior, aal., 
Defendants. 
1 
)
1 
)
) 
) 
) 
) 
) 
Case No. 1:96CVO1285 
(Judge Lamberth) 
DEFENDANTS' REPLY IN SUPPORT OF 
(1) MOTION FOR EXPEDITED CONSIDERATION; AND 
(2) MOTION FOR CLARIFICATIONTHAT 
DEFENDANTS AND THEIR ATTORNEYS ARE 
PERMITTED TO CONTACT PLAINTIFF EARL OLD PERSON 
OR, IN THE ALTERNATIVE, FOR PERMISSION TO DO SO 
Defendants state the following reply to the Plaintiffs' Opposition ("Plaintiffs' 
Opposition") (April 3, 2003) to Defendants' Consolidated (1) Motion for Expedited 
Consideration; and (2) Motion for Clarification that Defendants and Their Attorneys Are 
Permitted to Contact Plaintiff Earl Old Person or, in the Alternative, for Permission to Do So 
("Defendants' Motion"). 
Introduction 
Plaintiffs' Opposition ignores several crucial points on the merits. Rather, Plaintiffs 
launch vitriolic attacks on Defendants and their attorneys, and Plaintiffs appear even to attack 
Mr. Old Person,' all while claiming to still represent him as a class member. Plaintiffs fail to 
I -See Plaintiffs' Opposition at 5 (accusing Mr. Old Person of "ignor[ing] this Court as he 
has persistently ignored the four named plaintiffs and their counsel"). Perhaps it is more than 
mere coincidence that Plaintiffs' attacks on Mr. Old Person come just after he has been quoted in 
the press as criticizing their approach to this case. See Defendants' Motion at 6. Moreover, 
whether he has really ignored them, or whether class counsel rejected his offers to comply with This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
overcome Defendants' clear showing that good cause exists for Defendants and their attorneys to 
be able to communicate directly and freely with Mr. Old Person. 
ArPument 
I. Plaintiffs Have Not Opposed Expedited Dimosition of Defendants' Motion 
Plaintiffs' Opposition (at 1 n. 1) incorrectly asserts that Defendants' request for expedited 
consideration is moot and, therefore, declines to address it. In fact, Defendants' request for 
expedited consideration remains in play and is all the more pressing because of the rapidly 
approaching trial of Phase 1.5 and the need to adduce information from Mr. Old Person before 
that trial. Defendants respectfully ask that the Court rule on this matter as soon as possible so 
that any discovery of Mr. Old Person can be completed and any information he knows can be 
presented to the Court. 
11. Plaintiffs' Arguments Highlight the Need for the 
Court to Enter an Order Permitting Defendants 
and Their Counsel to Communicate With Mr. Old Person 
Defendants' Motion noted a seeming contradiction in the Court's Order dated March 5, 
2003 (the "3/5/03Order"), which, on the one hand, stated that Mr. Old Person is not in the class, 
but, at the same time, might be read to suggest that class counsel still represents Mr. Old Person 
as a member of the class. Plaintiffs' Opposition (at 1) asserts that the Court already ruled on the 
issue "clearly and unambiguously." Plaintiffs also criticize Defendants for a "feigned plea for 
clarity where no ambiguity exists." Plaintiffs' Opposition at 4n.8. But Plaintiffs' own arguments 
highlight the seeming contradiction or ambiguity in the 3/5/03 Order and demonstrate that 
clarification is necessary. 
discovery, remains to be seen. 
2 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
The 3/5/03 Order (at 6 ) states that Mr. Old Person is no longer a class representative, 
"will not become an absent class member,'' and shall proceed pro se as to his individual claims. 
Yet, relying on other provisions of the 3/5/03 Order, Plaintiffs' Opposition (at 2) states: "Mr. Old 
Person, as a member of the Cobell class, is represented by plaintiffs' counsel.''* (Emphasis 
added.) Thus, far from showing that no clarification is needed, Plaintiffs' arguments demonstrate 
that confusion exists over (1) whether Mr. Old Person is a member of the class; and (2) whether, 
notwithstanding his pro se status, class counsel still represents him in some other capacity; and 
(3) whether Defendants and their attorneys are barred from contacting him. 
Plaintiffs' Opposition (at 4-5)argues that no clarification is needed because of the Court's 
December 2002 order prohibiting communications with class members regarding claims 
involved in the litigation. First, that argument begs the question because the December 2002 
Order pertained to communications with class members, whereas one of the points now needing 
clarification is whether Mr. Old Person still is a class member (see above). Second, even if he 
were deemed a member of the class, he stands in a different position fi-om any other class 
member because he also is an individual plaintiff proceeding pro se. The December 2002 Order 
does not address pro se individual plaintiffs. Therefore, it is far from clear whether the 
December 2002 Order applies to Mr. Old Person at this juncture. Thus, it is perfectly reasonable 
for Defendants to be uncertain of whether contacts with Mr. Old Person remain prohibited. 
In support, Plaintiffs' Opposition (at 3 n.5) relies upon the fact that the 3/5/03 Order also 
granted class counsel's motion to withdraw from the representation of Mi. Old Person in any 
capacity other than as class counsel for a member of the certified class. 
3 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
III. Ptaintiffs Fail to Overcome Defendants' Showing That Defendants 
and Their Attornevs Should be Allowed to Contact Mr. Old Person 
A. Defendants Should Be Allowed to Communicate 
With Mr. Old Person In Order to Help Bring 
About His Compliance With Discovery and 
Reeardin? Motions and Other Proceedinm In the Case 
Plaintiffs' Opposition (at 2) notes that Mr. Old Person still has not provided discovery, 
although Plaintiffs fail to articulate why that fact should preclude Defendants or counsel fi-om 
talking to him. On the contrary, Defendants' attorneys need to contact Mr. Old Person in order to 
help brinP about the discovery (s, to try to set an agreed-upon deposition date). Defendants' or 
their attorneys' direct communications with Mr. Old Person are likely either to bring about his 
voluntary and cooperative compliance with discovery or to reveal the need for Defendants to 
request that the Court employ more compulsory methods of ensuring compliance. 
Also, Defendants and counsel should be permitted to serve Mr. Old Person with papers 
(just as Defendants serve named Plaintiffs' counsel) and to contact him regarding motions and 
other litigation matters that arise Gust as Defendants' attorneys communicate about those items 
with counsel for named plaintiff^).^ In order for the case to proceed properly, parties should be 
served and included in the proceedings. This cannot be accomplished effectively if Defendants' 
attorneys are prohibited from serving Mr. Old Person with papers and contacting him regarding 
proceedings in the case. 
Plaintiffs' Opposition (at 2 n.4) notes that they now serve him by facsimile with papers 
in this case. Thus, they seem to concede that he should be served as is any party, yet if 
Defendants sent papers directly to Mr. Old Person, Plaintiffs might claim this violated the 
Court's Order prohibiting contact with class members. Defendants appropriately ask the Court 
for clarification as to such matters. 
4 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
B. Plaintiffs' Unsubstantiated Assertions That Mr. Old Person 
Possesses Unspecified "Privileged Information" Are Not 
Sufficient to Justify a Complete Ban on CommunicatingWith Him 
Plaintiffs next argue that no contact should be allowed because, they contend, Mr. Old 
Person possesses unspecified types of "privileged information." Plaintiffs' Opposition at 2-3. 
This argument is insufficient to justify a total ban of communications with Mr. Old Person. First, 
even if Plaintiffs had established that he possesses some privileged information, that would 
furnish no basis for precluding communicationswith Mr. Old Person (who now proceeds pro se 
as an individual Plaintiff) regarding non-privileged matters, including but not limited to those 
identified above. 
Second, Plaintiffs fail to establish that Mr. Old Person actually possesses privileged 
information. Plaintiffs fail even to specify which privileges might apply. They state only that he 
"acquired privileged information." Plaintiffs' Opposition at 3. Perhaps Plaintiffs mean to imply 
that he has attorneyclient privileged information, but they fail to state this outright and they fail 
to prove it. 
As the parties asserting a privilege, Plaintiffs bear the burden of proving that it exists. In 
re Sealed Case, 737 F.2d 94,99 (D.C. Cir. 1984). Merely because Mr. Old Person had 
communications with class counsel does not mean that all such communications are necessarily 
privileged. See Coastal States Gas Cop. v. Dep't of Energy, 617 F.2d 854,862 (D.C. Cir. 1980) 
(the attorney-client privilege "'protects only those disclosures necessary to obtain informed legal 
advice which might not have been made absent the privilege"' (quoting Fisher v. United States, 
425 U.S. 391,403 (1976)). As this Court has noted, "[tlhe attorney-clientprivilege, [I does not 
protect an attorney's opinion or advice, but only the 'secrecy of the underlying facts obtained from 
5 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
the client."' Alexander v. F.B.I., 193 F.R.D. 1,5 (D.D.C. 2000) (quoting Mead Data Central. Inc. 
v. United States Dep't of the Air Force, 566 F.2d 242,254 n.28 (D.C. Cir. 1977)). 
Third, even if Mr. Old Person possesses privileged information, that is no basis to 
preclude Defendants' and their attorneys' communications with him. Class counsel are free to 
inform him of what they consider privileged, and Mr. Old Person, as a pro se party, is to decide 
what he is free to discuss. 
Plaintiffs analogize the attorney-client privilege in this class action to the attorney-client 
privilege that exists in a corporate setting, noting that corporate officials must exercise the 
privilege in a manner "consistent with their fiduciary duty to act in the best interest of the 
corporation." Plaintiffs' Opposition at 3 n.7. But if Mr. Old Person's position were analogized to 
that of a former corporate employee, then contacts with him would be al10wed.~Of course, 
Defendants are mindful of the rules (see note 4,supra) against soliciting legitimatelyprivileged 
information, and would not solicit such information in private conversations with Mr. Old 
Person. 
But the mere possibility that Mr. Old Person might know of some privileged information 
cannot shield any nonprivileged facts showing conflicts of interest that Plaintiffs or class counsel 
might have with other class members. As discussed in Defendants' Motion, the relationship 
-See D.C. Bar Legal Ethics Opinion No. 287 (January 19, 1999), which states that "[a] 
lawyer may contact unrepresented former employees of a party-opponent without obtaining 
consent from that party irrespective of the position formerly held by the ex-employee in the 
opposing organization. Prior to any substantive communication, the lawyer must disclose to the 
former employee the lawyer's identity and that the fact that the lawyer represents a party adverse 
to the ex-employee's former employer. During the communication the lawyer may not solicit 
privileged information of the party opponent." 
6 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
between class counsel and class members is subject to "substantial scrutiny by the court." 
NEWBERG 9 15.03, at 15-9 (3d ed. 1992). ON CLASSACTIONS 
C. Mr. Old Person's Statements Quoted in the Press 
1 
The record contains sufficient evidence that Mr. Old Person is likely to have knowledge 
of matters important to this case, seeminglynot covered by any recognizable privilege. 
Defendants should be free to explore these matters with Mr. Old Person and to encourage him to 
bring these matters out into the open. Plaintiffs' Opposition implies that Plaintiffs might attempt 
to muzzle Mr. Old Person's disclosure of crucial information. 
For example, as discussed in Defendants' Motion, the March 9, 2003 article in the GREAT 
FALLSTRIBUNE(attached to Defendants' Motidn), quotes Mr. Old Person as indicating that he 
told "the lawyers" (presumably class counsel) that "he is ready to carry out his duty as a lead 
plaintiff and wants to stay on the team," but that they "want him off the case [I because he has 
publicly criticized some of their tactics." These statements attributed to Mr. Old Person appear 
to be directly at odds with what class counsel repeatedly have represented to this Court. For 
example, Plaintiffs' Opposition (filed on or about April 4, 2003) (at 2 n.4) states that Mr. Old 
Person "continues to remain mute and unresponsive to plaintiffs." Also, certain Plaintiffs' 
January 8,2003 Motion to Remove Earl Old Person as a Named Class Representative (at 2) 
stated, "Earl Old Person is no longer able or willing to fulfill his duties as a named class 
representative in this case."5 
Further, Plaintiffs' January 29,2003 Consolidated Reply Brief (at 2) stated that "[cllass 
counsel does not know exactly why Mr. Old Person no longer wants to serve as a class 
representative.'' That reply, however, was strickenby the Court's Order dated March 3,2003, as 
being untimely filed. 
7 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Conspicuouslyabsent from Plaintiffs' Opposition is any denial that Mr. Old Person made 
the statements attributed to him by the GREATFALLSTRIBUNEor any denial that class counsel 
failed accurately to disclose (see above) to the Court what Mr. Old Person told class counsel. 
Any remarks by Mr. Old Person on this subject should not be hidden by claims of 
privilege. Such communications by Mr. Old Person (G, simply informing class counsel that he 
wanted to remain as a class representative and that he was willing to comply with his duties) 
appear not to be privileged. This Court's Order dated February 5,2003 regarding the deposition 
of Donna Erwin is pertinent to this issue. The Court found that conversations between Ms. 
Erwin (an official of Interior) and Defendants' attorneys regarding Ms. Erwin's schedule for 
deposition were not privileged because these communicationswere not "made for the purpose of 
obtaining legal advice or services.'' February 5,2003 Order at 12. Similarly, if Mr. Old Person 
indeed made the remarks attributed to him by the cited newspaper article, which merely seem to 
be his announcement that he wished to submit to discovery and remain as a class representative, 
those statementsdo not appear to have been made for the purpose of obtaining legal advice or 
services. Thus, such conversations would not be privileged. 
The GREATFALLSTRIBUNEarticle also stated that Mr. Old Person disagrees with the 
tactics and relief sought by class counsel in this case. See Defendants' Motion at 6. Plaintiffs' 
Opposition also fails to deny this. While class counsel understandablymay wish to silence Mr. 
Old Person's criticisms, and hide such remarks under a shroud of "privilege" or "dutyr'to the 
class,just the opposite result should obtain. As Defendants' prior briefs on this subject have 
discussed, conflicting interests among class members must be considered and appropriate relief 
8 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Defendants' Motion at 7 n.4. granted to address them, such as formation of subclasses. 
Plaintiffs' Opposition does not dispute these principles. 
If Mr. Old Person knows of conflicts of interest between class members and the class 
representatives (or class counsel), those facts known to him or opinions held by him do not by 
themselves come within the definition of privileged communications, for they are not 
communications with counsel for the purpose of obtaining legal advice or services. At a 
minimum, Plaintiffs -as the parties asserting privilege -have the burden of establishing that a 
privilege applies, and they cannot rely on vague, conclusory assertions of privilege to squelch all 
communications with an individual pIaintiff such as Mr. Old Person. 
Defendants' and their attorneys' ability to communicate freely with Mr. Old Person as to 
non-privileged matters -without class counsel present to interfere with that process -will help 
bring to light any existing class conflicts known to Mr. Old Person so that they then can be 
developed in the record.6 
Plaintiffs' Opposition (at 6) inappropriatelysuggests that the Court "sua sponte consider 
appropriate sanctions" against Defendants and counsel for even asking for permission to contact 
Mr. Old Person. Obviously, no such sanctions are warranted. Defendants' motion is reasonable 
and well-founded, points out a legitimate issue unresolved by the Court's prior orders, and 
properly asks for permission to contact a pro se party as to non-privileged matters. Nothing 
about the motion warrants sanctions. 
Of course, if the Court were to conclude that such information about class conflicts 
should be developed only on the record in a deposition, the Court could so order. But, as 
discussed above, that would not justifjr what Plaintiffs advocate, which is a total ban on a11 
private discussions between Mr. Old Person and Defendants or their counsel. 
9 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Conclusion 
For the reasons stated above, Defendants respectfidlyrequest that the Court enter an order 
clarifying the 3/5/03 Order, or otherwise enter an order, so as to permit Defendants and their 
attorneys to communicate directly with Plaintiff Earl Old Person. 
Dated: April 14,2003 
Respectfidly submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
Deputy Directori/ 
D.C. Bar Number 26 1495 
JOHN T. STEMF'LEWTCZ 
Senior Trial Attorney 
DAVID J. GOTTESMAN 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 14,2003 I served the foregoing 
Defendants' Reply in Support of ( I ) Motionfor Expedited Consideration;and (2) Motionfor 
Clarification That Defendants and Their Attorneys Are Permitted to Contact PlaintiffEarl Old 
Person Or, In The Alternative,for Permission To Do So by facsimile in accordance with their 
written request of October 3 1, 2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
By facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
By Hand upon: 
Joseph S. Kieffer, III 
Special Master Monitor 
420 7thStreet, N.W. 
Apartment 705 
Washington, D.C. 20004 
(202) 478-1958 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 3 18-2372