IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, al., gt Plain tiffs, V. Case No. 1:96CVO1285 (RCL) 1 1 1 ) 1 (Special Master Alan L. Balaran) GALE A. NORTON, Secretary of the Interior, ) ) al., gt ) Defendants. INTERIOR DEPENDANTS' MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH PLAINTIFFS' NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO NON-PARTY MICHAEL CARR AND DEFENDANTS Pursuant to Fed. R. Civ. P. 26(c) and (d), the Secretary of the Interior and the Acting Assistant Secretary of the Interior - Indian Affairs ("Interior Defendants") hereby move for a protective order and an order quashing the plaintiffs' notice of deposition directed to former Interior attorney Michael Carr and the accompanying document production request directed to Mr. Carr and defendants. The improper discovery requests are Exhibit 1 to the accompanying memorandum of points and authorities. As explained in further detail in the accompanying memorandum of points and authorities, the deposition notice and document request are unauthorized and, indeed, in direct contravention of the Special Master's scheduling orders. Further, the deposition notice and document request are intended to elicit discovery in connection with plaintiffs' allegations of criminal and civil contempt against Mr. Can- and potentially other individuals named in plaintiffs' October 19,200 1 Motion f o r Order to Show Cause Why interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and for Defrauding This Court in Connection with Trial One (the ''October 19,2001 motion"). The Court of Appeals' recent decision in Cobell v. Norton, 334 F.3d 1 128 (D.C. Cir. 2003), makes clear that the discovery plaintiffs seek from Mr. Carr and the defendants is impermissible because of the potential criminal ramifications of plaintiffs' allegations. Counsel for Interior Defendants have attempted in good faith to resolve this discovery matter prior to filing this motion. Plaintiffs' counsel, however, have refused to withdraw the notice and document request, and therefore this motion is necessary. See Exhibit 2 to accompanying memorandum of points and authorities (certificate of counsel). A proposed report and recommendation is attached. September 1 1,2003 DATED: Respectfully submitted, ROBERT D. McCALLUM, JR. Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General MTCHAEL F. HERTZ Director Senior Triakdounsel I D.C. Bar No. 425194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben FrankIin Station Washington, D.C. 20044 (202) 307-0474 -2- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, al., Plaintiffs, V. Case No. 1 :96CV01285 (RCL) ) 1 1 1 1 1 (Special Master Alan L. Balaran) GALE A. NORTON, Secretary of the Interior, al., ) ) 1 ) Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF INTERIOR DEFENDANTSf MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH PLAINTIFFSf NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO NON-PARTY MICHAEL CARR AND DEFENDANTS Pursuant to Fed. R. Civ. P. 26(c) and (d), the Secretary of the Interior and the Acting Assistant Secretary of the Interior - Indian Affairs ("Interior Defendants") hereby move for a protective order and an order quashing the plaintiffs' unauthorized and otherwise improper attempt to take discovery in the contempt proceedings currently before the Special Master. On August 21, 2003, plaintiffs served a notice of deposition directed to former Interior attorney Michael Can accompanied by a document production request directed to Mr. Carr and defendants. Exhibit 1. The deposition notice and document request are unauthorized and, indeed, in direct contravention of the Special Master's scheduling orders. Further, the deposition notice and document request are intended to elicit discovery in connection with plaintiffs' allegations of criminal and civil contempt against Mr. Carr and potentially other individuals named in plaintiffs' October 19, 2001 Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt f o r Violating Court Orders andfor Defrauding This Court in Connectiorz with Trial One (the "October 19, 2001 motion"). The Court of Appeals' recent decision in Cohell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003), makes clear that the discovery plaintiffs seek from Mr. Carr and the defendants is impermissible because of the potential criminal ramifications of their allegations. Counsel for Interior Defendants have attempted in good faith to resolve this matter prior to filing this motion. Plaintiffs' counsel, however, have refused to withdraw the notice and document request, and therefore this motion is necessary. See Exhibit 2 (certificate of counsel). specifications: I. 2. 3. UP- Backwound On October 19, 2001, plaintiffs filed the show cause motion that is the subject of the Carr deposition notice and accompanying document request. On November 28,2001, the Court entered an Order to Show Cause granting plaintiffs' motion "as to the Interior defendants in their official capacities." The Order directed defendants Norton and McCaleb to "show cause why they should not be held in civil contempt of court in their official capacities" upon four That defendants had failed to comply with the Court's Order of December 21, 1999 to initiate a Historical Accounting Project. That defendants committed a fraud on the Court by concealing the Department's true actions regarding the Historical Accounting Project during the period from March 2000 until January 2001. That defendants committed a fraud on the Court by failing to disclose the true status of the TAAMS project between September 1999 and December 2 1 , 1999. 4. That defendants committed a fraud on the Court by filing false and misleading quarterly reports starting in March 2000, regarding TAAMS and BIA Data Clean- Order to Show Cause, Novcmber 28, 2001 at 1-2. The order stated that the "Court defers ruling at this time on plaintiffs' motion to order non-party employees and counsel to show cause." Id. at 1. On December 6,2001, the Court entered a Supplemental Order to Show Cause, adding a fifth -L- specification that defendants committed a fraud on the Court by making false and misleading representations starting in March 2000, regarding computer security of mM trust data. Plaintiffs' October 19,2001 motion did not address the IIM computer security issue which was the subject of the Supplemental Order to Show Cause, and plaintiffs did not amend their motion to include that specification. The five issues identified in the Orders to Show Cause were tried as to the named Interior Defendants in their official capacity, following which the Court issued its September 17, 2002 order. Cobell v. Norton, 226 F. Supp. 2d I (D.D.C. 2002). As part of the September 17,2002 order, the Court "deferred ruling on the plaintiffs' motion filed on October 19, 2001, as it related to 37 non-party employees and counsel." 226 F. Supp. 2d at 155. The Court explained this deferment: "Upon consideration of the memoranda filed in support of and in opposition to the plaintiffs' motion, the record in this case, and the applicable law, the Court finds that it is not appropriate to order these individuals to show cause at this time why they should not be held in contempt of court." Id. Instead, the Court referred the matter "to Special Master Balaran so that he may develop a complete record with respect to these 37 non-party individuals." Id.; see also id. at 162 ("It is further ORDERED that the plaintiffs' motion for order to show cause, filed October 19, 2001, shall be REFERRED to Special Master Balaran. Special Master Balaran shall issue a report and recommendation with respect to each of the 37 non-party individuals named in the plaintiffs' motion."). On October 7,2002, the Special Master issued a proposed protocol and schedule for addressing the two show cause orders that had been referred to him by the Court. The proposal included a discovery period before any determination of the legal sufficiency of plaintiffs' allegations. Following a case management conference held on October 30, 2002, in which the -3- propriety of discovery was among several topics addressed by the Special Master, counsel for the parties and counsel for the Named Individuals in their personal capacities, the Special Master issued a memorandum setting forth Revised Procedures and Schedule for Investigation Into Plaintiffs's'otion for Orders to Show Cause (dated Nov. 4,2002) ("Revised Procedures Memorandum"). In the Revised Procedures Memorandum, the Special Master provided that he would "preliminarily decide whether the individual Bills of Particular warrant dismissal before initiating any discovery." Revised Procedures Memorandum at 2. The Revised Procedures Memorandum also set forth a schedule for the plaintiffs to file "bills of particulars" setting forth the specific instances of contempt of which they accused each Named Individual and the evidence supporting such allegations. Plaintiffs' bills regarding the October 19,200 1 motion were to be filed by May 1, 2003. Thereafter, the Named Individuals - in both their official and personal capacities - were permitted to fiIe briefs challenging the legal sufficiency of plaintiffs' allegations. Briefing on those challenges was completed on August 18, 2003, and the Special Master has not yet issued any report and recommendation concerning those challenges. Likewise, the Master has never authorized the initiation of discovery in connection with the show cause motions over which he is currently presiding. By a letter to the Special Master dated December 4, 2002, plaintiffs' counsel proposed the initiation of discovery in these proceedings. Exhibit 3. The Special Master wrote back to plaintiffs' counsel the same day, reiterating his directive that discovery would not take place "[ulntil the report and recommendation issues regarding the legal sufficiency of the claims lodged against each of the Named Individuals. . . .'I Exhibit 4. On August 21,2003, plaintiffs served upon government counsel a notice of deposition for Mr. Can accompanied by a request for production of documents directed to Mr. Carr and -4- defendants. Exhibit 1. The request for production states that it seeks "documents related to the subject matter of the motions for order to show cause, bills of particular, Interior Office of Inspector General investigations and draft, interim and final reports, and the preliminary contempt proceedings . . . before Special Master Alan Balaran that are relevant to Named Individual Carr." Id. at 2. Thus, it is clear that plaintiffs are seeking discovery in furtherance of their October 19,2001 show cause motion and the bills of particulars filed in supplementation of that motion. The deposition notice and document request are in direct contravention of the Special Master's determination that no discovery will be permitted in these proceedings before the issuance of the Master's report and recommendation on the legal sufficiency of plaintiffs' claims against the Named Individuals. The plaintiffs' discovery requests are, therefore, unauthorized and should be quashed. Further, plaintiffs have indicated an intention to issue additional unauthorized discovery requests in these proceedings. Accordingly, it is appropriate for the Master to recommend that the Court enter a protective order precluding such discovery.' Areumen t Plaintiffs' Attempted Discovery is Unauthorized. Under Fed. R. Civ. P. 26(d), a party "may not seek discovery from any source before the A. parties have conferred as required by Rule 26(f)." No Rule 26(f) conference has taken place. Although plaintiffs sought leave of the Master to undertake discovery, the Master declined to 'Government counsel wrote to the Special Master on August 28, 2003, requesting that the Master affirm, as he had in his December 4,2002 letter to plaintiffs' counsel, that the government and the Named Individuals need not respond to any discovery in this matter at this time. That letter was also served upon plaintiffs' counsel. Exhibit 5 (attachments omitted). Private counsel for Mr. Carr likewise wrote to plaintiffs' counsel, with a copy to the Special Master, seeking the withdrawal of the improper notice. Exhibit 6. Nevertheless, plaintiffs have not withdrawn their improper discovery requests. -5- permit discovery at this time. Thus, plaintiffs have no right to take discovery of Interior Defendants or any Named Individual in these proceedings at this time. Nonetheless, plaintiffs have stated on their website that the Carr notice is "the first in a series" of depositions they intend to notice. See Exhibit 7, Therefore, the Special Master should recommend that the Court enter a protective order confirming that the Named Individuals and the defendants need not respond to any discovery requests in connection with the proceedings concerning the two show cause motions that are currentfy before the Special Master. B. Plaintiffs Cannot Take Discovery of the Named Individuals Because of the Potential Criminal Ramifications of the Proceeding. In seeking to depose Mr. Cam and to require him and Interior Defendants to produce documents relating to their October 19,2001 motion, plaintiffs have entirely ignored the Court of Appeals' July 18,2003 decision. The Court of Appeals held that the District Court's contempt citations on all four specifications arising from plaintiffs' October 19,2001 show cause motion were "criminal in nature." Cobell v. Norton, 334 F.3d 1128, 1146 (D.C. Cir. 2003). The Court of Appeals also made clear that anyone accused of criminal contempt - as Mr. Can and other Named Individuals here have been accused - is entitled to the full measure of due process rights afforded in any criminal proceeding. Id. at 1147. As we and private counsel for the Named Individuals have noted repeatedly, the Federal Rules of Criminal Procedure do not permit the sort of wide-ranging discovery that plaintiffs are again attempting to undertake with this notice of deposition and request for production of documents. See, e.g., Government's Response to Special Master's Proposed Protocol for Proceedings Regarding Plaintiffs' March 20, 2002 Motion for Order to Show Cause (filed Oct. 15, 2002) at 2 & note 2; Memorandurn of Points and Authorities in Opposition to Plaint@s'Bilis of Particulars in Support of Motion f o r Order to Show Cause -6- Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for Violating Court Orders and Defrauding this Court in Connection with Trial One (Filed October 19, 2001) (filed June 2,2003) at 18- 19; United States' Reply to Plaint@' Opposition to Named Individuals' Responses to Bills of Particulars Relating to Plaint@s' October 19, 2001 Motion for Order to Show Cause (filed Aug. 18,2003) at 1-3. Accordingly, it would constitute a serious violation of Mr. Carr's due process rights to permit the discovery to proceed on allegations that the Court of Appeals has already declared to be criminal in nature. Further, since the plaintiffs' allegations are clearly criminal in nature, plaintiffs' counsel are not permitted to have any role in conducting an investigation of those allegations. See LandmarkLegalFound. v. EPA, 2003 WL 21715678 at *4 (D.D.C. July 25,2003), citing Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 814 (1987). C. The Notice Is Also Defective Because Interior Defendants Cannot Produce Mr. Carr or Any Items in His Personal Possession. Mr. Carr is no longer employed by the federal government. Accordingly, Interior Defendants cannot produce him or anything in his personal possession. For this reason, too, the notice of deposition and document requests are defective and should be quashed. Conclusion For all the foregoing reasons, Interior Defendants request that the Special Master issue a report and recommendation that plaintiffs' August 2 1,2003 Notice of Deposition and Request for Production of Documents directed to Mr. Carr and defendants be quashed and that a protective order be entered prohibiting discovery in connection with the show cause proceedings before the Special Master until further order of the Court. -7- Respectfully submitted, ROBERT D. McCALLUM, JR. Associate Attorney General PETER D. KEISLER Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General MICHAEL F. HERTZ D.C. Bar No. 425 194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: September 11,2003 -8- IN THE UNITED STATES DISTRICT COURT FOR THE DlSTRICT OF COLUMBIA ELOUISE PEPION COBELL, gt 4, Plaintiffs, V. Case No. 1 :96CV01285 (RCL) GALE A. NORTON, Secretary of the Interior, (Special Master Alan L. Balaran) ) 1 ) 1 1 ) 1 al., Defendants. REPORT AND RECOMMENDATION OF SPECIAL MASTER CONCERNING INTERIOR DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH PLAINTIFFS' NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO NON-PARTY MICHAEL CARR AND DEFENDANTS On September 17,2002, the Court referred to the Special Master (1) plaintiffs' Motion for Order to Show Cause Why Interior Defendants and their Counsel Should Not be Held in Contempt for Destro-ying E-mail (filed March 20,2002) (the "March 20,2002 motion") and (2) plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt f o r Violating Court Orders and f o r Defrauding This Court in Connection with Trial One (filed Oct. 19,2001) as it pertained to the 37 non-party individuals named in plaintiffs' motion (the "October 19,2001 motion"). Pursuant to the Court's referral of the March 20, 2003 and October 19,200 1 motions, the Special Master issued a memorandum setting forth the Revised Procedures and Schedule for Investigation Into PIaint#s' Motion for Orders to Show Cause (dated Nov. 4, 2002). Therein, the Master determined to "preliminarily decide whether the individual Bills of Particular warrant dismissal before initiating any discovery." Id. at 2. Upon consideration of Interior Defendants' Motion for Protective Order and Motion to Quash Plaint#s' Notice of Deposition and Request for Production of Documents Directed to Non-Party Michael Curr and Defendants (filed Sept. 11,2003), and the record before the Special Master concerning the Court's referral of plaintiffs' March 20,2002 and October 19, 2001 motions, the Special Master recommends that the Court: Enter an order prohibiting discovery in connection with the plaintiffs' March 20, I . 2002 motion or October 19,2001 motion until further order of the Court; and 2. Enter an order quashing the Notice of Deposition and Request for Production of Documents, dated August 2 1 2003, directed by plaintiffs to Michael Carr and defendants. Alan L. Balaran Special Master Dated: IT IS SO ORDERED. Hon. Royce C. Lamberth UNITED STATES DISTRICT JUDGE DATED: -2- cc: Tracy Hilmer Dodge Wells Sandra Spooner Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 (202) 6 16-3085 Alan L. Balaran, Esq. Special Master 17 17 Pennsylvania Ave., NW 12th Floor Washington, DC 20006 (202) 986-8477 Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 822-0068 Counsel for Plaintiffs Dennis M Gingold, Esq. Mark Kester Brown, Esq. 607 14th Street, N.W. Box 6 Washington, D.C. 20005 (202) 3 18-2372 Counsel for Plaint f l s Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Counsel for Pluint f l s Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 594 17 (406) 338-7530 Mary Lou Soller, Esq. Adam Feinberg, Esq. Miller & Chevalier 655 15th Street, N.W., Suite 900 Washington, D.C. 20005 By First Class Mail Counsel for Chester Mills and Terence Virden Earl J. Silbert, Esq. Robert A. Salerno, Esq. Adam Hoffinger, Esq. Piper Rudnick LLP 1200 19th Street, N.W., 7th Floor, Washington, D.C. 20036 Counsel for John Cruden, Jack Haugrud and Sarah Himmelhoch David S. Krakoff, Esq. Alessio D. Evangelista Jamie Abrams Christine Stroop Beveridge & Diamond, P.C. 1350 I Street, N.W. Suite 700 Washington, D.C. 20005-33 11 Counsel for Day1 Wiite Amy Berman Jackson, Esq. Trout & Richards 1 100 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20036 Counsel for Edith Blackwell William H. Briggs, Jr., Esq. Marc E. Rindner, Esq. Ross, Dixon & Bell 2001 K Street, N.W. Washington, D.C. 20006- 1040 Counsel for Phillip Brooks Michael Bromwich, Esq. Anne Perry, Esq. Fried Frank Harris Shriver & Jacobson 1001 Pennsylvania Avenue, N.W.Suite 800 Washington, D.C. 20004-2505 - 1 - B. Michael Rauh, Esq. Julie Campbell, Esq. Manatt, Phelps & Phillips, LLP 1501 M Street, N.W. Suite 700 Washington, D.C. 20005 Counsel for Neal McCaleb Barry Boss, Esq. Asbill, Junkin, Moffitt & Boss 1615 New Hampshire Ave., N.W. Suite 200 Washington, D.C. 20009 William Gardner, Esq. Morgan, Lewis & Bockius 1 1 1 1 Pennsylvania Avenue, N. W. Washington, D.C. 20004 Counsel for Willa Perlmutter Barbara Van Gelder, Esq. Eric Lyttle, Esq. Wiley, Rein & Fielding LLP 1776 K Street, N.W. Washington, D.C. 20006-2304 and Erika C. Birg, Esq. Paul, Weiss, Rifkind, Wharton & Garrison 1615 L Street, NW, Suite 1300 Washington, DC 20036 Counsel f o r James Eichncr Roger Zuckeman, Esq. Leslie Kiernan, Esq. William Taylor, Esq. Zuckerman, Spader, Goldstein, Taylor & Kolker, LLP 1201 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 Counsel for Robert Lamb and Hilda Manuel Chnstopher Mead, Esq. London & Mead 1225 19th Street, N.W. Suite 320 Washington, D.C. 20036 Counsel for Ken Rossrnan Robert Luskin, Esq. Patton Boggs 2550 M St., Suite 500 Washington, D.C. 2003 7- 1350 Counsel for Edward Cohen, Bruce Babbitt and John Leshy Plat0 Cacheris, Esq. John F. Hundley, Esq. Sydney J. Hoffhann, Esq. Baker & McKenzie 8 15 Connecticut Avenue, N. W. Washington, D.C. 20006 Counsel for John Berry and Glen Schumaker R. Christopher Cook, Esq. Jones Day Reaves & Pogue 5 1 Louisiana Ave, N. W. Washington, D.C. 2000 1-2 I 13 Counsel for Michael Carr Kathleen E. Voelker, Esq. 1 10 1 Connecticut Avenue, N. W ., Suite 1000 Washington, D.C. 20036 Counsel for James Douglas Martha Rogers, Esq. Leon Rodriguez, Esq. Ober, Kaler, Grimes & Shiver 1410 H Street, N.W., Suite 500 Washington, D.C. 20005 Counsel for Timothy Elliott - 2 - Herbert Fenster, Esq. Jane Ann Neiswender, Esq. Daniel G. Jarcho, Esq. McKenna, Long & Aldridge, LLP 370 Seventeenth Street, Suite 4800 Denver, Colorado 80202 Counsel f o r Gale Norton James Johnson, Esq. Jamie Levitt, Esq. Morrison & Foerster 1290 Sixth Avenue New York, NY 10104 Counsel for Sabrina McCarthy E. Lawrence Barcella, Jr. Scharn Robinson, Esq. Paul, Hasting, Janofsky & Walker LLP 1299 Pennsylvania Avenue, N. W. Washington, D.C. 20004-2400 Counsel for William Myers Stephen M. Byers, Esq. Miguel Rodriguez, Esq. Crowell & Moring 1001 Pennsylvania Avenue, N. W. Washington, D.C. 20004-2595 Counsel for Dominic Nessi Elizabeth Wallace Fleming, Esq. Trout & Richards PLLC 1100 Connecticut Ave. NW, Suite 730 Washington, DC 20036 Counsel for Michael Rossetti Jeffrey D. Robinson, Esq. Dwight Bostwick, Esq. Melissa McNiven, Esq. Baach, Robinson & Lewis One Thomas Circle, Suite 200 Washington, D.C. 20005 Counsel for Lois Schiffer and Anne Shields Steven J. Roman, Esq. John A. Gibbons, Esq. Dickstein, Shapiro, Morh & Oshinshy 2101 L Street NW Washington, DC 20037-1 526 Counsel for David Shilton and John Bryson Michael Goodstein, Esq. Deanna Chang, Esq. Resolution Law Group, P.C. 5335 Wisconsin Avenue, Suite 350 Washington, D.C. 20015 Counsel for Toin Clark Stanley Brand, Esq. Andrew D. Herman, Esq. Brand & Frulla 923 Fifteenth Street, N.W. Washington, D.C. 20005 Counsel for Peter Coppelman Hamilton P. Fox lTI, Esq. Kathleen M. Devereaux, Esq. Gregory S. Smith, Esq. Sutherland, Asbill & Brennan LLP 1275 Pennsylvania Avenue, N. W. Washington, D.C. 20004-2415 Counsel for Charles Findla)) Thomas E. Wilson, Esq. John A. Ordway, Esq. Berliner, Corcoran & Rowe, LLP 1101 17th Street, N.W., Suite 1100 Washington, D.C. 20036 Counsel for John Most Larry A. Nathans, Esq. Robert W. Biddle, Esq. Bennett & Nathans, LLP 210 East Lexington Street, Suite 301 Baltimore, MD 21202 Counsel for David Shuey - 3 - Eugene R. Fidell, Esq. Matthew S. Freedus, Esq. Feldesnian, Tucker, Leihr, Fidell & Bank LLP 2001 L Street, N.W., 2nd Floor Washington, D.C. 20036 Counsel for James Simon - 4 - 1-202-318-2372 From Geaffrey Rempel 2003-08-21 13 4 0 56 (GMI ) To. Page 1 of 6 Case No.l:96CVO1285 (RCL) Special Master Balaran 1 ) 1 1 1 1 IN 'THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOIJISE PEPION COBETA+ et al., Plaintiffs V. GALE NORTON, Secretary Defendants 1 1 1 ) 1 NOTICE OF DEPOSITION and REQUEST FOR PRODUCTION OF DOCUMENTS To: Christopher Cook Jones Day 51 Louisiana Avenue, N.W. Waslungton, D.C. 20002-21 13 Attornev for Named Individual Michael Carr Mark E. Nagle Assistant IJ.S. Attorney Judiciary Center Building 555 Fourth Street. NW, Room 10-403 Waslungton, DC 2w01 J. Cliri stopher Kohn United States Department of Justice Civil Division 1100 L Street, NW, Room 10036 Washington 1)c 2mos Attomevs for Defendants PLEASE TAKE NOTICE that on September 24,2003, at plaintiffs' counsel's offices, 607 14" Street. 9Ih floor, Washington D.C. 20005, plaintiffs will take the deposition of Michael Can: aid This deposition will coinnience at 1O:OO a.m. and will continue from day to day until completed. Testimony will be recorded by stenographic means. EXHIBIT 1 Defs' Motion to Quash Pltfs' Notice of Depo B R.F.P. re Michael Carr To’ Page 2 of 6 deponent produce on or before September 22: 2003 the following docuinents related to the subject matter of the niotions for order to show cause, bills of particular, Interior Ofice of Inspector General investigations and draR interim and final reports, and the preliminary contempt proceedings (individually and collectively the “Subject Matters”) before Special Master Alan Balamn that are relevant to Named Individual Carr: 1. 2. 3 . 1-707-318-2372 From Geoffrey Rempel 2(103-0&21 13-40’56 (GMT) PLEASE TAKE FURTIiEK NOTICE - Request is hereby made that defendants and the All documents, including memoranda., handwritten notes and marginalia, calendars, diaries (including Mr. Carr’s “green books” if he used them), appointineiit books, schedulers, planners, Day-Timers, voice mail, emad, telephone records and the like, including without limitation all hard copy documents, and electronic documents housed in, or created on, computers or personal digital assistants, whether the computers are owned or leased by the government, its agents, emplovees, or Named Individual Can; and any drafts thereof, which documents show in whole or in part matters that relate to, refer to, or embody the Subject Matters whether any such references are direct or indirect and general or specific with respect to Named Individual Carr. All phonc logs (both incoming and outgoing), phone message books, voice mail, and telephone message slips, including without limitation all individual phone memoranda slips together with the duplicate carbon or carbonless originals contained in the phone message books thcnisclves (typically spiral bound), and all notes of teiephonc conversations maintained i n such logs, which documents relate to, refer to or embody the Subject Matter, whether any such references to the Subject Matters are direct, indirect, general or specific, and whether such rcfcrence telephone calls, whcthcr completed or not, placed to or made by Mi-. Can at any time relevant to the Subject Matters. All documents, whether in hard copy or electronic fonnat - including all memoranda voice mail. email. handwritten notes and marginalia - that relate to, refer to, or embody, directly or indirectly, generally or specifically, and illformal ur fonnal, disciplinary action, 2 1-202-318-2372 From, Geoffrey Rempel M03-08-21 13.40:56 (GMT) To Page3of6 threatened disciplinary action, investigations, examinations, assessments or adverse or critical performance reviews “(“Rofessional Evaluations”) concerning Named Individual Can- and his conduct with respect to the Subject Matters, including without limitation the Office of Inspector General, Office of the Solicitor, Department of Justice, and all disciplinary action taken with respect thereto. 4. All documents, whether in hard copy or electronic format, that relate to, refer to, or embody tlie time and charges of all personal counsel for Named Individual Carr, including all hourly rates, actual time billed and paid, all expises related thereto, the dates such bills were submitted for payment, the dates payments were made, and the realization percentage for all time subniitted and tendered for payment, and explanations, if any, for the government’s deferment of fees or failure to pay 100% of time and charges submitted for payment to the defendants or tlie Department of Justice. However, this request does include the detailed description of specific professional services provided by personal counsel to Nanied Individual Carr in support of each such statement of time and charges. 3 To Page4of6 OF COUNSEL: JOHN ECHOHAWK Native American Rights Fund 1506 Broadway Boulder, Colorado 80302 August 2 1,2003 1-202-318-2372 From. Geoffrey Rempel 2003-0821 13 40 56 (GMT) DENNIS M. GINGOLD D.C. Bar No. 417748 MARK KESTER BROWN I3.C. Bar No. 470952 GO7 14Ih Street., N.W. 9th Floor Washiiigtos D.C. 20005 KEITH M. HARPER D.C. Bar No. 451956 Native American Rghts Fund 1712N Street, NW Wadlington, DC 20036-2976 Attornew for Plaintiffs 4 1-202-318-2372 From. Geoffrey Rernpei 2003-08-21 13.40-56 (GMTI To PageSof6 CERTIFICATE OF SERVICE I hereby Certify that 8 Copy Of the foregoing NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS was served on the following by US Mail or facsimile, pursuant to agreenient, on this day. August 21.2003. VIA FACSIMILE Mark E. Nagle Assistant IJ.S. Attorney Judiciary Center Building 555 Fourth Street N.W. Room 10-403 Washington, D. C. 2000 1 202.5 14.8780 (fax) J. Christopher Kohn United States Department of Justice Civil hvision 1100 L Street, N.W. Room 10036 Waslungton, D.C. 20005 202.5 14.9 1 63 (fax) Earl Old Person (Prose) Blackfeet Tribe P.O. Box 850 Browning, M?’ 59417 406.33 8.7530 ( fas) William Bnggs, Jr. Ross, Dison & Bell, LLP 2001 K S t , W Washington, DC 20006 1 WO Camsel for Phil Rr-mk Kobcrt L u s h Patton Boggs, LLP 2550 M St, NW Washington, DC 20037- i 350 Cormsef for Bmce Babbitt, Ed Cohm 2003-OE21 13:40'56 (GMT) To' Page 6 of 6 VIA US MAIL Cllristopher Cook Jones, Day, Kevis & Pogue 51 Louisiana Avenue, NW Washington DC 2000 1-2 1 1 3 Cowiselfor h.iicliael Carr Plato Cacheris Baker & Mckenzie 81 5 Connecticut Avenue, NW Waslungton, MI: 20006-4078 Counsel for J h i Ben y Amy Rerman Jackson Trout & Richards 1350 Connecticut Avenue. Suite 1220 Waslington, DC 20036 Coraisel for Edfh Blackwell Greg Smith Sutheriand, Asbill 1275 Pennsylvania Ave, NW Washington DC 20004 Cocaisel for Clwles Findq Earl Silbert PI pe r, Rudiiic k 1200 Nineteenth St, NW Waslington UC 20036 Colnisel,for Sarah D. Hinmrelhocl? Koger Zuckeniian Zuckemian Spaeder 1201 Connecticut Avenue Washington, DC 200362638 Coioisel for Bob Lantb Jeffrey Robinson Baach Robinson & Lewis, PLLC One Thomas Circle, NW Waslingto14 DC 20005 Suite 200 Coutisel for 1,oi.Y Scliifler Larry Allen Nathans Bennett & Nathans LLP 210 East Lexlngton St, Suite 301 Baltimore. MD 21202 Cuinisef. for- DmYdShq 1-202-318-2372 From Geoffrey Rempel L. Barrett Boss Asbill, Junkin, Moffitt & Boss 1615 New Hampshire Ave, NW Washington DC 20009 Counsel for Stew S~~~mzson Kevin Cover Steptoe and Johnson 1330 Connecticut Avenue, NW Washington, DC 20036 Bradley S. Lui Morrison & Foerster 2000 Pennsylvania Ave, NW Washngton, DC 20006- 1888 CotaLsel for Sabrina McCarthy Dwight Rostwick Baach Kobinson & Lewis 1 Thomas Circle, NU:, Suite 200 Washington DC 20005 Cotawel for Ame She/& 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ~ ELOUISE PEPION COBELL, et al., Plaintiffs, V. GALE A. NORTON, et al., Defendants. CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 26(c) Dodge Wells, one of the attorneys for the Interior defendants, hereby certifies that he conferred with Dennis Gingold, counsel for plaintiffs, by telephone on September 9,2003 in a good-faith effort to resolve the issues raised by the foregoing motion for a protective order concerning the notice for the depositions of Michael Carr, and the he and Mr. Gingold have been unable to resolve the dispute. September 9,2003 Dodge Wells Senior Trial Counsel D.C. Bar No. 425 194 Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0407 DATED: Civil Action No. 96-1285 (RCL) ) 1 ) 1 1 ) 1 (Special Master Alan L. Balaran) ) ) ) EXHIBIT 2 Defs' Motion to Quash Pltfs' Notice of Depo & R.F.P. re Michael Cam 12023182372 From: Geoffrey Rernpel To: Page1 O f 3 Deiiriis M Giigold P. 0. Ros I4464 Wa~lutigton, D. C. ,700444464 BY FACSIMILE December 4,2002 Hon. Alan Balaran 1717 Pennsylvania Ave., N.W Twelfth Floor Washington, D.C. 20006 Re: Cobdl v. ,Vurtun, Civ. Action No. 1285 (RCL). Procedures and Schedule for Investigation Into Putative Contemnors’ Misconduct. Dear Mr. Balaran: By this letter, plaintiffs respectfully bring to your attention two matters regarding your investigation into the culpability of more than 39 putative contenmors. First, inasmuch as plaintiffs have conipleted the initial series oT“Bil1s of Particulars”’ in accordance with your November 4,2002 Memorandum setting fortli the revised schedule,I it is now appropriate for plaintiffs to commence discovery to the extent their burden under Fed.R.Civ P. 12(b)(6) has been Accordingly, plaintiffs propose the submission of a preliminary “list of potential witnesses for the Special Master’s review along with a brief statenlent explaining why each witness should be deposed,”‘ as well as appropriate discovery requests critical to your complete and thorough investigation.’ ”Ihese “Bills of Particulars” were prepared in support Plaiiitifls‘h40tioii For Order to Sliow Cause IF@ Interior Defeiabits. /tiid Tlgir Coiaael, SlzouldNot Be Ileld UI Civil And Crimiiial Coirtempt For- DcsR-oJ7ltg E-nmil(3/20!02) and detail each putative contemnor’s role in the destruction of federal records at the Office of the Solicitor. ’Plaintiffs respectfully note that the Special Master’s November 4,2002 Memorandum revised the schcdule for the upcoming proceedings, it did not revise the “Rules Governing the Investigative Process.” See October 7,2002 Memorandum at 4-6. ’Id. at 4 (“The Special Master will initially review plaintiffs bill of particulars and determine if the investigation should proceed with regard to a particular Named Individual and evaluate whether plaintiffs have stated a claim and whether the allegations, construed in a light most favorable to plaintiffs, constitute fraud on the court.”) (footnotes omitted). 41d. at 5 . ’Id. Plaintiffs reserve the right to supplement their request for discovery to the extent that EXHIBIT 3 Defs’ Motion to Quash Pltfs’ Notice o f Depo & R.P.P. re Michael Cam 12023182372 From Geoffrey Rernpel To: 2002-12-04 15-22 49 (GMT) P a g e Z o f 3 Second, plaintiffs note that you have scheduled May 1,2003 as the deadline €or plaintiffs’ second series of “Bills of Particulars;” the same day that this Court has scheduled the opening of Trial 1.5. To be absolutely clear: it is impossible for plaintiffs to produce the requested “Bills of Particulars” and prepare concurrently for a major trial covering both retrospective and prospective aspects ofthis action. Moreover, this first series of “Bills of Particulars” has denionstrated that issues are capable of being segregated; indeed, the massive nature of these frauds militate strongly for parbtioning the issues into manageable segments and proceeding seriatim. Plaititiffs suggest that proceeding along the same lines as the Court in the second Contempt Trial is appropriate. For these reasons, plaintiffs respectfully request that the Specid Master permit the submission of “Rills of Particulars” with respect to Count 5, starting August 4, 2003.6 Very truly yours, Demis M. Gingold cc: Hon. Joseph Kieffer, 111, Special Master-Monitor (via facsinde) All Counsel identified in Attachment A (via facsimile) 6Plaintiffs propse that scheduling future counts may be best accomplished after the Master lias made his reports and reconmiendations regarding the destruction of electronic records and any future proceedings before the Court arc known. 2 To: Page 3 o f 3 L. BARREIT BOSS I I RUSSELL DUNCAN STEPHEN M. DYERS EUGENE R FIDELL MICHAEL BROMWICH CHRISTOPHER COOK CHRISTOPHER KOHN MARK NAGLE PLATO CACHERIS CHRISTOPHER MEAD B. MICHAEL RAUH , , HERBERT FENSTER fiRY-LOU SOLLER BRADLEY S. LUI MAR TF TA R OnCrER S ROBERT D LUSKIN E LAWRENCE BARCELLA, JR PAUL HATINGS. JANOFSKY & WALKER EARL SILBERT ELIZABETH W FLEMING MICHAEL D. GOODSTEIN WILLIAM H. BRIGGS, JR HAMILTON P. FOX, I11 AMY BERhGW JACKSON BARBARA VAN GELDER DWIGHT P. ROSTWICK JEFFREY D. ROBINSON BMCH ROBINSON & LEWIS LARRY ALLEN NATHANS BENNETT & NATHANS LLP THOMAS E. WILSON BERLINEK CORCORAN & ROWE ALESSIODAVIDEVANGELISTA BEVERIDGE & DIAMOND, P.C. STANLEY M. BRAND ASBILL, JU", MOFFIIT & BOSS BMCH ROBINSON & LEWIS BRAND & FRULLA COBURN & SCHERTLER CROWELL & MOFUNG LLP FELDESMAN, TUCKER LEIFER, FIDELL & BANK FRIED, FRANK, HARRIS, SHRIVER & JACOBSON JONES DAY REVIS & POGUE JUSTICE DEPARTMENT JUSTICE DEPARTh4ENT LAW OFFICES OF PLATO CACHERIS LONDON & MEAD MANA'IT. PHELPS & PHILLIPS, LLP MCKENNA & CUNEO, LLP MILLER & CHEVALIER MORRISON & FOERSTER ORER. KAJ.ER GRIMES & SHRIVER PATTON BOGGS, LLP PIPER RUDNICK, LLP PRESTON, GATES, ELLIS & ROUVELAS MEEDS RESOLUTION LAW GROUP, P C ROSS. DIXON & BELL, LLP SIJTHERLAND ASRII,I, & BRENNAN LLP TROUT & RICHARDS WILEY REIN & FIELDING LLP Z U C K E W SPAEDER ZUCKERMAN SPAEDER MORGAN. I.EWIS & ROCKIUS ROGER ZUCKERMAN LESLIE B. KIERNAN KEVIN GOVER KATHLEEN E VOELKER WII,I,IAM I, GARDNER 12023182372 From' Geoffrey Rempel 2002-12-04 15'22'49 (GMT) ATTACHMENT A Dec-04-02 02:47 LAW OFFICE from-THE LAW OFFICE @F ALAN BALARAN VIA FACSIMILE Dennis hil. Gingold, Esq. 1275 Pemsylvaiiirt Ave., N.W. Ninth Floor Washingron. DC 20001 Dsar Mr. Gingold: . .. . . 2. . f \-\jI! ssume, for the last rimc, rhar my direction concerning the maniisr in which these . - - - L - ~ ~ l ~ ~ ~ l ~ .- .. , 3~ 10 '0s a&jrzsszd was nor clrar and rhar your refei-rnl 10 rhem as "purative conremnors" was an ovzrsighr. Dxeinber 4,3002 RE: Cobell e t nl. v. Norcon er a]., Civil Action No. 96-1785 This lerter responds to )'our correspondence of rhis date regarding rhe procedures that will goveni the jnvesriyation inro the conducl of the 59 Naiiied Individuals' : Any requests for additional rime to file lhe second set of Bills of Parriculars or to segregarc the issues therein will require the coiiseiiI of couiisel for the Named I'ndividuals or tlie inrenm1ion of rhz Court. bloiions for Orders 10 Show Causz ~ l a i i %. i3zlaim SPECLIL MASTER EXHIBIT 4 Defs' Motion to Quash Pltfs' Notice of Depo & R.F.P. re Michael CatT zoz§emm T-279 P 02/08 F-343 1717 PENNWLVANIAAVE.. N.W TWELFTH FLOOR WASHINGTON. D C. 2fwO6 TELEPHOM 1202) 466-501(8 FAX (202) 986-8477 E-MAIL &J~u@rrul~.cnm Procedures and Schedule for Invcsrigarion Inro Plain\iffs' T-279 P 03/09 F-343 2029860477 Oec-04-02 02:47 From-THE LAW OFFICE OF ALAN BALARAN DISTRlRUTlON 1.1s-r - VIA FIRST-CLASS POSTAGE Deiiiiis M. Gingold, Esq. Elliott Levitas, Esq. I275 Peiinsylvaiiid Av?., S.IV. Ninth Floor Waslington, DC 10004 Tracy L. I-liimer, Esq. D o d g ~ Wells, Esq. Coiiiinircial Litigation Braiich/Civi 1 D ic.i si 011 United Stares Dep2rtinenr of Justice P.O. Box 261 Bcii Franklin Sratisn Washingon, D.C. 20044 E. Lawrence Barcella, Jr., Esq. Paul, Hasrings, Janofsky s( Walker LLP 7Yashing on, DC 3 1)003-2 40 0 1299 Pcimsylvania Avsnuz, 1\3 W Barry Bass, Esq. Asbill, Jiiriliin. M ~ r ' i i t t 6: 20~s 151 5 Neur Haniphirc Avenue, NW Suitc 200 Washingron, DC 20009 Dwighr Bostwick, Esq- Melissa McNivei, Esq. Baach, Robiiison 5( Lewis Olie Thomas Circle S&rc 200 Washingon, DC 20005 Sranley Brand, Esq. -4iir.l.rew D. Hennan, Esy. Grand & Frulla 923 Fifrcenrli Street, W' Washingon, DC 30003 l.;g-!l:!z:x H. Briggs, Jr., Esq. h!zc E. Rindnsr, Esq. Ross. Dixon EL Bell 2001 I( Sweet, NW Wasliington, DC 20006- 1040 1-279 P 04/08 F-343 Doc-04-02 02:47 z o m 6 ~ 4 7 7 From-THE LAW @FFlCE @F ALAN BALARAN Michael Bromwich, Esq. Anne Perry, Esq. Fried Frank Harris Shriver k Jacobson 1 GO 1 Pennsylvania Avenue, SW Wire SO0 Washington, DC 20003-2505 Sreve Byers, Esq. h,figuel Rodriguez, Esq. Crowell & Moring Waskingon, DC 20004-2595 100 1 Pennsylvania Avenue, "8 R . Chrisropher Cook, 'Esq. Joiics Day Rcaves B Pogue 5 1 Louisiana Asenuc, N V Washington, DC 2000 1-3 11 3 Riisscll D. Duncan, Esq. Coburn & Scha-der I I 50 I SJh Slrecr, NW Siiilc S50 W a s h i n p n , DC 20036 Herbert Fcnsrer, Esq. h4cKeniia Sr Cuneo, LL? 1300 I< Sneer, NTV Wasliiii~~on, DC 20006 Eugciie R. Fjde!!, Esq. b l d t t h w S. %rz?itus Feldesmaii, Tucker, Lei fur, Fidell & B;unlc, LLP 200 1 L Strcer, NW Second FIoor Washingron, DC 30036 Elia.bcrh Wallace Flzming, Esq. 71 5 15" StreeI, NW Suire 35 LVajhingrojI, DC 20009 Dec-04-02 02:47 2029068477 From-THE LAW OFFICE OF ALAN @ALAPAN Hamilton P. Fox, Ill, Esq. Kat hl e en M . 'Deveizaux Gregory S. Smith Sutherlaiid,.AdiIl Sr Brennsn, 1,I.P 1275 Pennsylvania Avenuc. h?V Washington, DC 30004-241 5 Bill Gardnrr, Esq. b-lorcpl, Lewis 6r Bockius 11 11 Pennsylvania .4veiiue, :bl" Washingon, DC 20004 Michael Goodsrcin, Esq. Deanna Chang, Esq. Resolution %aw Croup. P.C. 5325 Wisconsin .qvenue, NW Suite 3SO '\Vrtshingron, DC 3001 5 Kevin Gover, Esq. Steptoe and Jolmon, LLP Washington, DC 20036 1530 CoiuieuicLit Avenue, John F. Hundley, Esq. S~dney .I. I-loffmann B&er SC hlcl<,-nzie 8 1 5 Connecticut Avenue, NW Washingron, DC 20006 Amy Beman Jackson, Esq. Trout B Richards 1\00 Connecticut j\venuil, NU; Suite 730, WajhillgIon, DC 30036 James Johsoii, Esq. Jamie Lesitt, Esq. ,Morrison 6: Foersrer 1230 SixTh Avenue Ycw York, ?W 101 01 -4- 1-279 P 06/08 F-343 2029868411 Dec-04-02 02:47 SuiLr 301 From-THE LAW OFFICE OF ALAN BALARAN David S. Krakoff, Esq. Alessio D. Evangelisra Beveridge & Diamond, P.C. 1350 I Street, NW Suiie 700 Washingon, DC 20005-33 I 1 Roberr Luskin, Esq. Patton B o ~ g s 2550 M Srrccr. NW Suite 500 Washington. DC 20037-1;5@ Clvistophzr Mcad, Esq. london & Mead 1225 lYh Street, NW Suite 330 Washingron, DC 20035 Larry A. Yarhans, Esq. Roben W. Biddle Bcnnerr & Nathms, LLP 2 10 East Lexingon Srreer Baltimore, MD 31202 13. Michael R;idi, Esq. hf;wil\, P11elps Sr Phillips, LLP 1501 kf Sireet, NW Suite 700 Washingon, DC 20005 Jcffrcy D. Robinson, Esq. Baach, Robinson 6: Lewis, PLLC Oiie Thomas CircIe, NW Washington, DC 20005 T-279 P 07/08 F-343 2029868477 Dec-04-02 02:48 .. . . /-:.;?* From-THE LAW OFFICE OF ALAN PALAPAN Suite 500 Washington, DC 30005 Mary LOU Soller, Esq. Miller 6: Chevalier, Esq. 655 15rh Srreer. NW Suire 900 Washington, DC 20005 Earl .I. Silbert, Esq. Roberr A. Salzmo, Ejq. Adam S. I-loffinyr, Esq. Piper 'Rudnick, LLP 1200 19"' Street, NW 7''' Floor Waslingon, DC 20036 1;L'illittni Taylor, Esq. Leslie I