<< COB00001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, ~i al	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. 1:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al.,	)	Special Master Alan Balaran
	)
Defendants.	)
GOVERNMENT'S RESPONSE TO SPECIAL MASTER'S
PROPOSED PROTOCOL FOR PROCEEDINGS
REGARDING PLAINTIFFS' MARCH 20. 2002
MOTION FOR ORDER TO SHOW CAUSE
	By order dated September 17, 2002, the Court referred to the Special Master the
Plaint ifs' Motion for Order to Show Cause I'J'7zy Interior Defendants and Their C'ounsel, Should
Not Be Held in Contenzpt for Destroying E-Mail (filed Mar. 20, 2002) (t~Plaint~~March 20,
2002 Motion"). In that motion, plaintiffs sought the issuance of show cause orders for both civil
and criminal contempt sanctions against Secretary Gale Norton and Assistant Secretary Neal
McCaleb in their official capacities and against seven non-party respondents in their official and
personal capacities. The undersigned Department of Justice attorneys represent these
respondents (collectively, the "Named Individuals") in their official capacities.'
	On October 7, 2002, the Special Master issued a proposed protocol and schedule for
addressing Plaintiffs'March 20, 2002 Motion. Having reviewed the schedule and consulted with
	'Each of the Named Individuals is separately represented in his or her personal capacity.
Not all representatives of the Named Individuals agree with all of the positions taken by the
Government herein, and some may elect to file separate responses.
<< COB00002 >>
counsel representing the Named Individuals in their personal capacity, the Government now
responds to the Master's proposed protocol and schedule.
	As an initial matter, the Government observes that because plaintiffs seek criminal
contempt sanctions against the Named Individuals, as well as civil contempt sanctions, the rules
applicable to criminal proceedings should be respected in this proceeding in order to assure that
the Named Individuals are afforded the full measure of due process to which they are entitled by
the Constitution. Pretrial discovery is far more limited in criminal proceedings than in civil
actions, and the Federal Rules of Criminal Procedure do not routinely permit depositions.2
Consequently, the Government proposes that the Special Master implement a procedure that
would first clarify whether plaintiffs have met theirprimafacie burden of showing contempt
through briefing before permitting discovery.3 This proposed procedure would have the likely
additional benefit of narrowing the issues so that any discovery the Master may eventually allow
	2Fed. R. Crim. P. 15 allows for pretrial depositions only in "exceptional circumstances"
when "it is in the interest ofjustice that the testimony of a prospective witness of a party be taken
and preserved for use at trial. . . ." The Advisory Committee Notes state that "a party may only
move to take the deposition of one of its own witnesses, not one of the adversary party's
witnesses" (Advisory Committee Notes on "1975 Enactment"), and confirm that "[t]he principal
objective [of Rule 15(a)] is the preservation of evidence for use at trial. It is not to provide a
method of pretrial discovery nor primarily for the purpose of obtaining a basis for later cross-
examination of an adverse witness. Discovery is a matter dealt with in Rule 16." (Advisory
Committee Notes on "1974 Amendment"). Fed. R. Crim. P. 16(b) addresses the disclosures
required of a defendant in a criminal prooeeding and limits those disclosures to documents,
tangible obj ects, reports of examinations and tests, and summaries of expert opinion testimony
that the defendant intends to rely upon at trial.
	3The Government anticipates addressing such issues as the proper standard for reviewing
the bills of particulars in its responsive brief, but notes for the record here that it does not agree
that Rule 12(b)(6) supplies the correct standard, nor does the Government agree that the issue
before the Master is "fraud on the court," since Plaint ffs'March 20, 2002 Motion clearly argues
that show cause orders are warranted solely by the alleged violation of specified orders or
directives.
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<< COB00003 >>
would be more focused. Further, the Government believes it would be inconsistent with the due
process rights of the Named Individuals to permit plaintiffs multiple opportunities to restate their
allegations. Accordingly, the Government proposes the following schedule:
December 2, 2002:	Plaintiffs file bills of particulars as to Secretary Norton,
Assistant Secretary McCaleb, Phillip Brooks, Charles
Findlay, Willa Perlmutter, Lois Schiffer and James Simon.4
January 17, 2002:	Secretary Norton, Assistant Secretary McCaleb, Phillip
Brooks, Charles Findlay, Willa Perlmutter, Lois Schiffer
and James Simon (in their official and personal capacities)
file responses to plaintiffs' bills of particulars.5
January 31, 2002:	Plaintiffs file their replies to the January 17, 2002
responses.
	4Plaintiffs have already filed bills of particulars as to Edward Cohen (see "Bill of
Particulars" in support of Plaint ~ffs' Motion for Order to Show Cause Why Interior Defendants,
and Their Counsel, Should Not Be Held in Criminal Contempt for Destroying E-Mail (3/20/02)
and Supplemental Memorandum of Points and Authorities in Support of &iminal Contempt
(dated July 22, 2002)) and Edith Blackwell (see "Bill of Particulars "for Edith Blackwell in
Support of Plaint~' Motion for Order to Show Cause Why Interior Defendants, and Their
Counsel, Should Not Be Held in Civil and Criminal Contempt for Destroying E-Mail (3/20/02)
and Supplemental Memorandum of Points and Authorities in Support of Criminal Contempt
(dated July 29, 2002)).
	5Both Government counsel and individual counsel have filed responses on behalf of
Edward Cohen and Edith Blackwell to plaintiffs' bills of particulars, and these responses should
also be accepted for review by the Master. See The Government's Response to Plaint ~ffs'Bill of
Particulars and Supplemental Memorandum in Support of Plaint ffs'Motion for an Order to
Show Cause Why Edward B. Cohen Should Not Be Held in Criminal Contempt (filed Aug. 5,
2002); Memorandum of Edward B. Cohen in Opposition to Plaint~'"Bill of Particulars" and
Supplemental Memoranda in Support of Plaint ~ffs' Motion for an Order to Show Cause Why
Edward B. Cohen Should Not Be Held in Criminal Contempt (dated Sept. 10, 2002); The
Government's Response to Plaint Wfs' Bill of Particulars and Supplemental Memorandum in
Support of Plaint ifs 'Motion for an Order to Show Cause Why Edith Blackwell Should Not Be
Held in Contempt in Connection with the Overwriting of Backup Tapes (filed Aug. 12, 2002);
Supplemental Opposition of Edith R. Blackwell to Plaint~ffs'Motion for Order to Show Cause
W7zy Interior Defendants and Their Counsel Should Not Be Held in Contempt for Destroying E-
Mail (dated Aug. 30, 2002).
-3-
<< COB00004 >>
February 28, 2003:	Oral argument
Following oral argument:	Special Master's Report and Recommendation to the Court
regarding Plaintiffs March 20, 2002 Motion as to each of
the Named Individuals.
	Consistent with Fed. R. Civ. P. 53(e)(2), the parties and Named Individuals should have
the opportunity to file with the Court any objections they may have to the Master's Report and
Recommendation. There should be no determination as to whether discovery can take place, or
what the scope of any discovery should be, until the Court has ruled upon the Master's Report
and Recommendation, determined whether or not plaintiffs have met their burdens, and clarified
the nature and scope of further proceedings, if any, on the subject motions.
	The Government further proposes that the Master set a date before the end of this month
for a case management conference to be attended by counsel for the parties and for the Named
Individuals. The Government proposes October 30, 2002 beginning at 10:00 am, if the Master's
schedule allows. The Government will obtain a location and court reporter for the conference, if
the Master so directs.
	On other matters of protocol, the Government believes that all portions of the record of
these proceedings should remain public and not be sealed.
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIIEFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
MICHAEL F. HERTZ
Directors
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<< COB00005 >>
Deputy Dire or
D.C. Bar No. 261495
Dodge Wells
Senior Trial Counsel
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 Franklin Station
Washington, D.C. 20044
(202) 307-0474
DATED:	October 15, 2002
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<< COB00006 >>
CERTIFICATE OF SERVICE
	I certify that on October 15, 2002 I served the foregoing Government'is Response to
Special Master~ Proposed Protocol for Proceedings Regarding Plaint ffs'March 20, 2002
Motion for Order to Show Cause in the manner stated upon the persons listed on the attached
service list.
JAMAL DAVIS
<< COB00007 >>
By Hand Delivery:	By first-class mail, postage prepaid, and/or
	by facsimile pursuant to written agreement:
Alan L. Balaran, Esq.
Special Master	Mary Lou Soller, Esq.
1717 Pennsylvania Ave., NW	Adam Feinberg, Esq.
12th Floor	Miller & Chevalier
Washington, DC 20006	655 15th Street, N.W., Suite 900
	Washington, D.C. 20005
By facsimile, pursuant to written agreement:	202-628-0858
	Counsel for Chester Mills and Terence
Keith Harper, Esq.	Virden
Native American Rights Fund
1712 N Street, N.W.	Earl J. Silbert, Esq.
Washington, D.C. 20036-2976	Robert A. Salerno, Esq.
(202) 822-0068	Adam Hoffinger, Esq.
Counsel for Plaint ifs	Piper Rudnick LLP
	1200 19th Street, N.W., 7th Floor,
Dennis M Gingold, Esq.	Washington, D.C. 20036
Mark Kester Brown, Esq.	202-223-2085
1275 Pennsylvania Avenue, N.W.	Counsel for John Cruden, Jack Haugrud
Ninth Floor	and Sarah Himmeihoch
Washington, D.C. 20004
(202) 318-2372	David S. Krakoff, Esq.
Counsel for Plaintiffs	Alessio D. Evangelista
	Beveridge & Diamond, P.C.
Copy by Facsimile and U.S. Mail upon:	13501 Street, N.W.
	Suite 700
Joseph S. Kieffer, Ill, Esq.	Washington, D.C. 20005-3311
Special Master Monitor	202-789-6190
420 7th Street, N.W.	Counsel for Daryl White
Apartment 705
Washington, D.C. 20004	Amy Berman Jackson, Esq.
(202) 478-1958	Trout & Richards
	1100 Connecticut Avenue, N.W.
	Suite 730
	Washington, D.C. 20036
	202-463-1925
	Counsel for Edith Blackwell
—1—
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Michael Bromwich, Esq.	William Gardner, Esq.
Anne Peny, Esq.	Morgan, Lewis & Bockius
Fried Frank Harris Shriver & Jacobson	1111 Pennsylvania Avenue, N.W.
1001 Pennsylvania Avenue, N.W.	Washington, D.C. 20004
Suite 800	202-739-3001
Washington, D.C. 20004-2505	Counsel for Willa Perim utter
202-639-7008
Counsel for Sharon Blackwell
	Barbara Van Gelder, Esq.
B. Michael Rauh, Esq.	Eric Lyttle, Esq.
Julie Campbell, Esq.	Wiley, Rein & Fielding LLP
Manatt, Phelps & Phillips, LLP	1776 K Street, N.W.
1501 M Street, N.W.	Washington, D.C. 20006-2304
Suite 700	202-719-7049
Washington, D.C. 20005	Counsel for James Eichner
202-463-4394
Counsel for Neal McCaleb	Roger Zuckerman, Esq.
	Leslie Kieman, Esq.
Barry Boss, Esq.	William Taylor, Esq.
Asbill, Junkin, Moffitt & Boss	Zuckerman, Spader, Goldstein, Taylor &
1615 New Hampshire Ave., N.W.	Kolker, LLP
Suite 200	1201 Connecticut Avenue, N.W.
Washington, D.C. 20009	Suite 700
202-332-6480	Washington, D.C. 20036
Counsel for Stephen Swanson	202-822-8106
	Counsel for Robert Lamb and Hilda Manuel
William H. Briggs, Jr., Esq.
Marc B. Rindner, Esq.	Christopher Mead, Esq.
Ross, Dixon & Bell	London & Mead
2001 K Street, N.W.	1225 19th Street, N.W.
Washington, D.C. 20006-1040	Suite 320
202-662-2190	Washington, D.C. 20036
Counsel for Philli~p Brooks	202-785-4280
	Counsel for Ken Rossman
	Robert Luskin, Esq.
	Patton Boggs
2550 M St., Suite 500
	Washington, D.C. 20037-1350
	202-457-6315
Counsel for Edward Cohen, Bruce Babbit
	and John Leshy
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Plato Cacheris, Esq.	Herbert Fenster, Esq.
John F. Hundley, Esq.	JaneAnne Neiswender, Esq.
Sydney J. Hoffmann, Esq.	McKenna & Cuneo, LLP
Baker & McKenzie	370 Seventeenth Street, Suite 4800
815 Connecticut Avenue, N.W.	Denver, Colorado 80202
Washington, D.C. 20006	303-634-4400
202-775-8702	202-496-7756
Counsel for John Berry and Glen	Counsel for Gale Norton
Schumaker
	James Johnson, Esq.
R. Christopher Cook, Esq.	Jamie Levitt, Esq.
Jones Day Reaves & Pogue	Morrison & Foerster
51 Louisiana Aye, N.W.	1290 Sixth Avenue
Washington, D.C. 20001-2113	New York, NY 10104
202-626-1700	212-468-7900
Counsel for Michael Carr	Counsel for Sabrina McCarthy
Kathleen E. Voelker, Esq.	E. Lawrence Barcella, Jr.
1101 Connecticut Avenue, N.W., Suite 1000	Scham Robinson, Esq.
Washington, D.C. 20036	Paul, Hastings, Janofsky & Walker LLP
202-835-2202	1299 Pennsylvania Avenue, N.W.
Counsel for James Douglas	Washington, D.C. 20004-2400
	202-508-9700
Martha Rogers, Esq.	Counsel for William Myers
Leon Rodriguez, Esq.
Ober, Kaler, Grimes & Shriver	Steve Byers, Esq.
1410 H Street, N.W., Suite 500	Miguel Rodriguez, Esq.
Washington, D.C. 20005	Crowell & Moring
202-408-0640	1001 Pennsylvania Avenue, N.W.
Counsel for Timothy Elliott	Washington, D.C. 20004-2595
	(202)628-5116
Lisa Kemler, Esq.	Counsel for Domenic Nessi
John Kenneth Zwerling, Esq.
Zwerling & Kemler	Jefferson M. Gray, Esq.
108 North Alfred Street	Arent Fox Kintner Plotkin & Kahn, PLLC
Alexandria, VA 22314	1050 Connecticut Avenue, N.W.
703-684-9700	Washington, D.C. 20036
Counsel for Deborah Maddox and Terry	202-857-6395
Steele	Counsel for Ken Paquin and Ken Russell
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<< COB00010 >>
Elizabeth Wallace Fleming, Esq.	Stanley Brand, Esq.
Preston, Gates, Ellis, Rouvelas & Meeds	Andrew D. Herman, Esq.
LLP	Brand & Frulla
1735 New York Avenue, N.W. , Suite 500,	923 Fifteenth Street, N.W.
Washington, D.C. 20006-5209	Washington, D.C. 20005
202-331-1024	202-737-7565
Counsel for Michael Rossetti	counsel for Peter Coppelman
Jeffrey D. Robinson, Esq.	Hamilton P. Fox III, Esq.
Dwight Bostwick, Esq.	Kathleen M. Devereaux, Esq.
Melissa McNiven, Esq.	Gregory S. Smith, Esq.
Baach, Robinson & Lewis	Sutherland, Asbill & Brennan LLP
One Thomas Circle, Suite 200	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20005	Washington, D.C. 20004-2415
202-466-5738	202-637-3593
Counsel for Lois Sch~ffer and Anne Shields	Counsel for Charles Findlay
Russell D. Duncan, Esq.	Thomas E. Wilson, Esq.
Coburn & Schertler	John A. Ordway, Esq.
1150 18th Street N.W., Suite 850	Berliner, Corcoran & Rowe, LLP
Washington, D.C. 20036	1100 17th Street, N.W., Suite 1100
202 628-4145	Washington, D.C. 20036
Counsel for David Shilton and John Biyson	202-293-9035
	Counsel for John Most
Michael Goodstein, Esq.
Deanna Chang, Esq.	Larry A. Nathans, Esq.
Resolution Law Group, P.C.	Robert W. Biddle, Esq.
5335 Wisconsin Avenue, Suite 350	Bennett & Nathans, LLP
Washington, D.C. 20015	210 East Lexington Street, Suite 301
202-686-4843	Baltimore, MD 21202
Counsel for Tom Clark	410-783-0518
	Counsel for David Shuey
Eugene R. Fidell, Esq.
Matthew S. Freedus, Esq.
Feldesman, Tucker, Leifur, Fidell & Bank
	LLP
2001 L Street, N.W., 2nd Floor
	Washington, D.C. 20036
	202-293-8103
Counsel for James Simon
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