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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELGUISE PEPION COBELL et al	)
)	No. 1:96CV01285
		Plaintiffs,	)
	v.		)	(Joseph S. Kieffer, m
	)	Special Master-Monitor)
GALE A. NORTON, Secretary of	)
the Interior et al	)
	)
Defendants.	)
INTERIOR DEFENDANTS' STATUS REPORT ON
DISCOVERY RELATING TO TRIAL PHASE 1.5
	To aid the Special Master-Monitor in facilitating discovery for phase 1.5, working with
the parties to reach agreement where possible, and identifying issues that require resolution, the
Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Defendants") submit this
Status Report On Discovery Relating to Trial Phase 1.5. In his letter to all counsel, dated October
14, 2002, the Special Master-Monitor asked the parties to attend a discovery conference on
October 18, 2002; this submission is also intended to assist the progress of that conference.
A.	Current Discovery Developments Following The Last Conference
Counsel for the parties met for a full day of consultations with the Special Master-Monitor
on October 3, 2002. During the conference, Defendants and Plaintiffs proposed and discussed the
dates with the Special Master-Monitor for the conduct of discovery, given the Court's imposed
deadlines of January 6, 2003, for filing of any plans; January 31, 2003, for moving for summary
judgment; and May 1, 2003, for trial of phase 1.5.
	Several other discovery topics were addressed at the October 3 conference as well, such as
Defendants' affirmative discovery, ~ Hearing Transcript of October 3, 2002 at 110-34
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[hereinafter cited as "Tr."], disputed discovery requests served previously by Plaintiffs, Tr. at
206-10, depositions each side plans to take, Tr. 200-01, and how discovery disputes might be
addressed during this phase, Tr. at 158-59, 163-64. The Special Master-Monitor took these issues
under advisement. He asked for further information in some cases and indicated that he would
draft a proposed discovery schedule and ~ ~ proposal reflecting the parties' comments and
concerns.
	On October 4, 2002, the Special Master-Monitor declined to entertain Plaintiffs' requests
concerning their previous, disputed discovery requests and referred Plaintiffs to Special Master
Balaran. The Special Master-Monitor also filed a Report and Recommendation addressing
Plaintiffs' Motion to Unseal Document Filed Under Seal by Court Monitor. On October 7, 2002,
the Special Master-Monitor faxed the parties a letter, asking the parties to confer on an attached
draft discovery schedule and submit comments on the schedule by October 9, 2002. The Special
Master-Monitor solicited comments on draft guidelines he circulated concerning ~ pafle
contacts.
	Per the Special Master-Monitor's request, Defendants' counsel called Plaintiffs' counsel
and consulted with them on October 9, 2002. Defendants' counsel discussed at length with Mr.
Brown, for Plaintiffs, the advantages to all concerned of stipulating to a scheduling order setting
out deadlines for discovery, while the parties continued to work on specific language, satisfactory
to both sides, to govern the process by which any discovery will be expedited or extended and the
means by which discovery disputes might be resolved.
21Four attorneys from Justice, including Mr. Petrie, Mr. Stemplewicz, Mr. Quinn and Phil Seligman, made
themselves available to discuss the discovery schedule with Plaintiffs' counsel. We attempted to reach
Keith Harper by telephone and then spoke with Mr. Brown when Mr. Harper could not be reached.
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	As Defendants explained to Mr. Brown, this procedure made sense for two reasons. First,
the parties were in complete agreement on the dates for the discovery milestones. Second, both
sides recognized that the draft proposed order did not fully address the discovery ground rules for
phase 1.5 that may deviate from the Federal Rules of Civil Procedure.
	Toward the end of the conference call, Mr. Brown inquired whether Defendants' counsel
would be ready to discuss specific language later in the day. Contrary to assertions by Mr. Brown
in his letter to the Special Master-Monitor, dated October 10, 2002 (at paragraph 2), Defendants'
counsel told Mr. Brown they were not sure whether they could be ready to discuss specific
wording later that day. On Defendants' behalf, Mr. Quinn telephoned Mr. Brown again about
3:45 p.m. that same day and reached an agreement to confer on these issues again the next day at
11:00 a.m. Defendants also agreed to consider whatever discovery terms Plaintiffs indicated they
would propose in their October 9 letter to the Special Master-Monitor about the discovery
schedule.
	Plaintiffs' counsel then abandoned this arrangement the very next day. On October 9,
Defendants submitted and served their letter to the Special Master-Monitor, but received no letter
from Plaintiffs concerning the discovery schedule.2 The first letter Defendants' counsel received
on these topics was Mr. Brown's October 10 letter to the Special Master-Monitor, which cancelled
the telephone conference planned for October 10 and made a rash of false and totally unfounded
representations to the Special Master-Monitor. Consequently, the parties did not confer about
2'Defendants were unaware of Mr. Brown's October 9 letter until Mr. Quinn called Mr. Brown concerning
his letter of October 10. Mr. Brown stated that he had faxed his October 9 letter to Mr. Petrie and that he
had a confirmation of the transmission. Mr. Brown then faxed a courtesy copy of the October 9 letter but
did not send the confirmation sheet.
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what specific discovery ground rules beyond the Federal Rules of Civil Procedure should be
adopted for this phase.
	Subsequently, the Special Master-Monitor submitted a Report and Recommendation,
dated October 14, 2002, supporting the discovery schedule stipulated to by both sides. By letter
to the parties, dated October 14, 2002, the Special Master-Monitor also asked the parties to meet
in conference with him on Friday, October 18, 2002, to address remaining discovery issues.
B.	Discovery Matters Addressed in the Special Master-Monitor's Letter Of October 14
	To facilitate discussion during the conference on October 18 and to forestall any
confusion as to Defendants' position, Defendants submit this summary of their understanding of
the matters enumerated as "agreements" in the Special Master-Monitor's letter to counsel, dated
October 14, 2002, at 3-5. The Special Master-Monitor expressly noted that "[i]f this list missed
recognizing any agreement between the parties made at the October 3, 2002 discovery conference
or [if] a party objects to the interpretation of an agreement, these issues can be raised at the status
conference to be held this Friday, October 18, 2002." Id. at 5, note 6.
	Defendants' position regarding the enumerated items can be summarized as follows:
	1. Defendants' Discovery. The Discovery Period opened on October 7 by stipulation.
As the Special Master-Monitor has noted, the Federal Rules of Civil Procedure govern the
process unless the parties agree to specific departures from the Rules. Those Rules provide for
discovery by both parties. See. e.g.. Fed. R. Civ. P. 26(b)(1)("Parties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party. ..
Defendants' ability to conduct discovery has not been limited by Court order. Although the
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Special Master-Monitor has inquired whether Defendants should be so entitled, Defendants have
briefed the issue3 and addressed it in conference on October 3. It is Defendants position that they
are entitled to proceed with discovery unless ordered otherwise.
	No agreement was reached concerning whether Defendants are required to "clear"
discovery requests with the Special Master before propounding them. To the contrary, Plaintiffs
proposed a procedure requiring Defendants to submit their discovery requests to the Special
Master-Monitor for approval, but the Special Master-Monitor did not adopt such an arrangement.
See Tr. at 141-43. Defendants' entitlement to discovery must be as broad as Plaintiffs' right in
order to ensure due process.4
	Plaintiffs, moreover, are amply protected under the Rules from undue burdens or
harassment. The Rules specifically permit any party to seek a protective order against discovery
requests that either present a special hardship or seek to impose discovery obligations that are
broader than what Rule 26 allows. Thus, even without any further agreement by the parties,
either side remains entitled during this phase to petition the Special Master-Monitor for relief.
Moreover, as Defendants suggest further below (Part C, Section 3), there may be a better
approach to addressing these issues without adopting a blanket restriction.
	Finally, Defendants cannot overemphasize the fundamental importance of affording
discovery to both sides in an even-handed manner. The guaranteed access to discovery in
preparing for trial is inherent in, and a principal basis for, the Federal Rules of Civil Procedure,
~See Interior Defendants Statement Regarding Discovery, filed October 1, 2002.
~'If the Special Master-Monitor anticipates filing a recommendation to the Court that Defendants'
discovery right should be limited, Defendants respectfully urge the Special Master-Monitor to file his
submission without delay, so that Defendants arc not prejudiced by a delay in resolving this issue.
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and Defendants have approached this entire process with the expectation that they will receive
due process and not be subjected to unfair surprise. Defendants noted this expectation and set it
forth explicitly as a condition on their agreement to the discovery schedule that has since been
recommended to the Court. Indeed, if denied this fundamental, inherent right to discovery, the
entire process is subject to objection. That does not mean that Defendants will not comply with
the orders of the Court or duties imposed upon them in discovery, but to preserve their objections,
Defendants cannot to stipulate to discovery arrangements if, in fact, discovery is to be denied
them.
	2.	Party Depositions. Defendants have proposed to Plaintiffs, at the Special Master-
Monitors' direction, deposition dates for three Department of the Interior witnesses, James Cason,
Ross Swimmer, and Stephen Griles. Plaintiffs expressed a desire to conduct all three depositions
during one three-week window, October 21, through November 12, 2002, which happens to
coincide with a tribal conference and preparation of the next Quarterly Report to the Court, due
November 1. In light of the witnesses' busy schedules and Plaintiffs' preferred window,
Defendants proposed November 5, 6 and 7 for each witness. Defendants have also provided
some alternative dates for witnesses where dates were available. The alternative dates include
November 4 for Mr. Cason and November 12, 13 and 14 for Mr. Griles. As of this writing,
Plaintiffs have not responded to the proposed dates.
	In light of the Special Master-Monitor's Report and Recommendation regarding the
deposition of these three officials of the Department of the Interior, Defendants will produce these
witnesses for deposition. For the record, however, Defendants continue to object to discovery in
general and reserve the right to object to the continuation of any deposition if it becomes
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repetitive, harassing or a waste of time.
	Defendants do consent to holding more than one day of deposition for these witnesses, so
long as the arrangement is mutual. A multiple day deposition, extending beyond one seven hour
session, is a departure from the Federal Rules, see Fed. R. Civ. P. 30(d)(2) ("Unless otherwise
authorized by the court or stipulated by the parties, a deposition is limited to one day of seven
hours."), and so fairness dictates that any agreement extending or broadening one party's
discovery obligations must be reciprocal.
	Plaintiffs have demanded that these three witnesses appear for up to 21 hours of
deposition apiece (3 days of 7 hour sessions) and that they be produced again after January 6, as
needed, for further depositions of undetennined length. Defendants continue to question whether
Plaintiffs require more than 21 hours of any witness in total, and Plaintiffs have made no showing
to demonstrate their need for such prolonged oral discovery of these witnesses. See Tr. at 197.
Defendants would prefer to agree on an overall time limit, rather than leave the matter open-
ended and subject to a future motion for protective order. Defendants propose that these
witnesses appear for no more than a total of 21 hours of deposition each, with time divided
between pre-January 6 and post January 6, as Plaintiffs determine. Permitting Plaintiffs to take
depositions without a set time limit is an invitation to frolic and detour that is wasteful of the
limited time available in this phase. Defendants, therefore, respectfully again urge the Special
Master-Monitor to recommend a maximum time limit on depositions and otherwise reserve their
right to move for a protective order in the event a deposition becomes harassing or manifestly
unproductive.
	Finally, Plaintiffs stated they desired to "sequester" the witnesses, Messrs. Griles, Cason
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and Swimmer, which Defendants understood to be some arrangement wherein none of these
witnesses could review or discuss their deposition testimony with the other witnesses until the
depositions were all completed. Tr. at 229. Defendants agreed only to consider such a proposal
and the Special Master-Monitor directed Plaintiffs to submit a proposed form of sequestration. Tr.
at 230. Plaintiffs proposed some language in their letter (at page 4-5), dated October 9, to the.
Special Master-Monitor. Plaintiffs are concerned that the language proposed is overly broad and
problematic. Plaintiffs proposed the following operative limitation: "The contents of the
depositions, including without limitation the questions asked and the answers given, shall not, in
form or substance, be discussed with or revealed to any persons or entities. ." Defendants
propose using language such as the following: "The contents of a witness' testimony shall not, in
form or substance, be discussed with or revealed to any persons or entities other than counsel."
Defendants' alternative is closer to that employed by Special Master Balaran as part of the IT
Security investigation, and Defendants plan to propose a specific form of order at the conference.
	3.	Existing Discovery Reauests of Plaintiffs. For the record, it is Defendants'
understanding that the Special Master-Monitor declined Plaintiffs' entreaty to consider discovery
issues as they concern Treasury or Paragraph 19 matters at the October 3 conference.
Subsequently, by letter dated October 4, 2002, the Special Master-Monitor declined to consider
issues concermng Plaintiffs' existing and previously served discovery requests and advised
Plaintiffs to bring those matters to the attention of Special Master Balaran, who had previously
dealt with issues relating to these requests.
	4.	Location for Production of Documents. At the October 3 conference, Plaintiffs
advocated that all documents must be produced to them at their offices in Washington.
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Defendants opposed this as a blanket rule, urging that some productions because of their size,
breadth or the condition of documents themselves could make production in Washington
wasteful, overly burdensome and/or time consuming. Tr. at 216, 221-22. The Special Master-
Monitor then appeared to suggest a case by case review of document production requests,
whereby the producing party would notify' the Special Master-Monitor of an anticipated difficulty
with relevant requested documents, followed by some kind of mutual effort to determine the best
course for completing the production in an efficient manner. Tr. at 2 19-20, 222. Defendants
understood this would involve a cooperative effort but not an agreement to undertake a burden on
Defendants to produce every document requested in Washington, D.C. absent a protective order.
While Defendants remain amenable to a cooperative effort on documents, no specific language
has as yet been proposed.
	5.	Nonparty Discovery. Defendants did agree to seek voluntary cooperation in
discovery of nonparties that Defendants "control" within the meaning of the Rules. Defendants
also noted, however, that many nonparties may still require service of a subpoena, in which case,
Defendants will notiI~r Plaintiffs. Likewise, many other (i.e., "nonparty") federal departments and
agencies have specific regulations requiring service of a subpoena, which neither Defendants nor
their counsel have the authority to waive.
	In addition, it is not within the power of this Court to mandate that a deposition of
nonparty witnesses occur in Washington, D.C. if that witness resides more than 100 miles outside
the District of Columbia. Fed. R. Civ. P. 45(b)(2)Q'a subpoena may be served at any place within
the district of the court by which it is issued, or at any place without the district that is within 100
miles of the place of deposition... [or] production"). Thus, the parties must recognize that some
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nonparty depositions may occur at locations outside Washington, where the witness is found, as is
the ordinary course in any national litigation.
	6.	Ernst & Youn2 Depositions. At the October 3 conference, Tr. at 212, the parties
did briefly discuss the possibility of a deposition of someone from Ernst & Young, but the date,
location, duration and other aspects of such a deposition were not even considered. These remain
open issues that need to be addressed by the parties.
	7.	Extensions of Discovery and "Surprise" Witnesses. During the October 3
conference, when discussing the usefulness of having each side exchange a list of potential
witnesses during discovery, the issue arose of avoiding "surprise" witnesses showing up on one
side's trial witness list that the opposing side had not had an opportunity to depose previously.
The Special Master-Monitor suggested that he would favor allowing a deposition to be held "out
of time" in order to prevent unfair surprise. Defendants submit that this understanding be entered
as a formal agreement for this phase of the case.5
	8.	APA Obiections & Discovery. Defendants desire to clarify their continuing,
consistent position concerning their objections based upon the Administrative Procedure Act and
the discovery to be undertaken in preparation for the phase 1.5 trial. The APA issue has been
briefed and discussed at length, but there still appears to be a misconception about how that
objection will impact this phase of the proceedings. ~ Letter of Joseph S. Kieffer to the parties,
dated October 14, 2002, at 3, note 3 and accompanying text. Although Defendants continue to
assert their objections based upon the APA and to reserve them for appeal, this objection has not
~'Again, inherent in all of Defendants' positions on discovery is the well-founded expectation that
Defendants will be able to conduct their own discovery.
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interfered in any way with phase 1.5 discovery and should not "continue to interfere with.. .this
discovery" as the Special Master-Monitor, with all due respect, has asserted. Id. at 2-3.
	In short, the United States is immune from suit unless it waives that immunity. The APA
is admittedly the only basis on which Plaintiffs may maintain an action against the United States.
If the APA is the basis for suit, then the action must proceed according to the dictates of the APA,
which does not permit discovery in the manner directed by the Court here. Notwithstanding this
limitation, the Court has ordered that discovery occur, and Defendants will comply with that
order. Defendants, however, intend fully to reserve the issue for appeal and so will continue,
where appropnate, to note their continuing objections to the proceedings based on the APA. As
Mr. Stemplewicz expressly stated at the October 3, 2002 hearing, these objections will not be
used as a basis for refusing to provide discovery, Tr. at 125-26, absent a superceding court order.
C.	Additional Discovery Issues That Need To Be Addressed
	1.	Deposition Dates for the Five Named Plaintiffs. Defendants have previously
noticed Eloise Cobell for deposition. Defendants propose that all five named Plaintiffs appear for
deposition for at least one day initially, beginning with Ms. Cobell. Given Plaintiffs' desire to
hold all depositions in Washington, all these depositions will be held in D.C. Defendants request
that Plaintiffs consult with their clients and propose dates for these depositions during the period,
November 12 through November 26, 2002, within the next week.
	2.	Responses to Defendants' Outstanding Discovery Requests. Defendants have
previously served Plaintiffs with discovery requests that are directly relevant to phase 1.5. These
include one very limited document request, which contains a mere five requests. This was served
on June 5, 2002, so Plaintiffs have had already had time to review these requests for production
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with their clients. Plaintiffs have pending a motion for a protective order asserting a blanket
challenge that Defendants should not receive discovery because of alleged failures in Defendants'
own production. Given the Court's intervening orders, Defendants believe the asserted basis for
the protective order is rendered moot, and Plaintiffs should produce these documents forthwith.
In any event, Defendants require this production in advance of the depositions of the individual
Plaintiffs.
	3.	Communications Between The Parties. Clear communications between the parties
and among the parties and the Special Master-Monitor remain a major concern. Defendants
believe the Special Master-Monitor's decision to avoid any ~ partc communications is the only
approach that will minimize the potential for miscommunication that can result from such
contacts.
	Defendants remain concerned that communication between the parties will also be more
likely to be misinterpreted and misconstrued unless those consultations are recorded by
stenography. The parties' consultations concerning comments on the Special Master-Monitor's
draft proposed discovery schedule underscores the difficulty of maintaining clear communications
in this case. Defendants' counsel called Mr. Brown on October 9, 2002 to discuss at length the
parties' respective views and concerns about the draft proposed discovery order that the Special
Master-Monitor had circulated for comment. Mr. Brown's letter of October 10, 2002, to the
Special Master-Monitor, however, mischaracterized Defendants' objections to the draft schedule
and was wholly at odds with the extended discussion the parties had on October 9. Contrary to
Mr. Brown's statement, Defendants' objections are not "a direct challenge" to the 'iurisdiction
and authority" of the Special Master-Monitor. Defendants' counsel plainly told Mr. Brown on
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October 9 that the language concerning discovery procedures was inadequate and incomplete.
Mr. Brown agreed that they were incomplete. Defendants stated their desire to agree on the
schedule, advise the Special Master-Monitor of the parties' agreement on the dates, and then
consult further to develop language for discovery guidelines.6 It was flatly wrong for Plaintiffs to
pretend that our objection to the wording was a rejection of the concept.
	It was particularly outrageous for Plaintiffs -- having had the benefit of a full explanation
of our position and knowing Defendants' express willingness to work on wording for discovery
guidelines -- to claim that Defendants' reservation of rights by way of objection somehow
"manifests bad faith and an apparent intention to obstruct thc judicial process." They are patently
wrong.7
	Given this experience, Defendants recommend that the parties meet for regular, perhaps
biweekly, conferences before the Special Master-Monitor to address pending discovery on an
ongoing basis. Such conferences, on the record, will afford a forum for each side to disclose
problems in responding to discovery requests and other problems as they become evident.
~For example, at the October 3 conference, the parties discussed the concept of flagging any discovery
problems early and not waiting until the response deadline to identify them. The draft discovery order
mentioned a document production deadline but offered no mechanism for addressing and resolving
discovery problems early. Although Plaintiffs characterize the draft order's partial treatment as
"innocuous," Defendants considered it dangerous to address only half an issue at a time.
2~Defendants also note their vigorous disagreement with the denouncement in Mr. Browns' letter of the
Special Master-Monitor's discovery conference on October 3 and the subsequent party consultations as a
'colossal waste of.. .time." Letter of Mark Kester Brown, dated October 11, 2002, to Joseph S. Kieffer,
mat i. That is a label better reserved for the diatribe and false accusations made in Plaintiffs' own letter.
The parties had come to agreement on all pre-trial dates. We had agreed to consult further on language
for specific phase 1.5 discovery guidelines, and that dialog only ended because Plaintiffs' counsel
unilaterally decided not to participate in a telephone conference slated for October 10. It is time to stop
histrionics and aspersions and get on with the huge task ahead. Defendants remain prepared and
committed to plan, conduct and complete discovery in an orderly, fair and efficient manner.
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Defendants submit that this approach is superior to the "early protective order" approach
suggested by Plaintiffs. See Letter from Mark Kester Brown, dated October 9, 2002, to Joseph S.
Kieffer, Ill, at 2. Regular conferences will force the parties to focus on the discovery matters at
hand and will keep the Special Master-Monitor apprised of the course of discovery. It also
would permit the Special Master-Monitor an opportunity to work out a resolution with the parties,
as problems arise.
	Finally, Defendants also request an opportunity to clarif~' with the Special Master-Monitor
his list of procedures for addressing discovery issues that is set out in his letter to counsel, dated
October 14, 2002.
Dated: October 18, 2002	Respectfully submitted,
ROBERT D. McCALLIJM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	1. CHRISTOPHER KOHN
	Director
	SAND	P. SPOONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
TERRY M. PETRIE
Trial Attorney
D.C. Bar 454795
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
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CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on October 17, 2002 I served the foregoing
Interior Defendants Status Report on Discovety Relating to Trial Phase 1.5 by facsimile, in
accordance with their written request of October31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
l7l2NStreet,N.W.	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 Hand upon:
Joseph S. Kieffer, 111
Special Master Monitor
420 7~ Street, N.W.
Apartment 705
Washington, D.C. 20004
(202) 478-1958
K~vin P. Kin~ston 61