IN THE UNITED STATES DISTRICT COURT 
FOR ‘1liE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, a &, 1 
1 
) 
) 
Plaintiffs, 
No. 1:96CV01285 
(Judge Lamberth) 
V. 
1 
) 
) 
GALE A. NORTON, Secretary of 
the Interior, a &, 
Defendants. 
INTERIOR DEFENDANTS’ REPLY IN SUPPORT OF 
MOTION FOR A PROTECTIVE ORDER 
REGARDING PLAINTIFFS’ NOTICE OF DEPOSITION OF ANSON BAKER 
AND REQUEST FOR PRODUCTION OF DOCUMENTS 
On August 2 I , 2003, Plaintiffs served on Interior Defendants’ counsel a notice of 
deposition of non-party Interior employee Ansori Baker that included document requests 
(collectively, “Anson Baker Discovery”). On September 22, 2003, Interior filed a Motion for a 
Protective Order from the Ansori Baker Discoveiy. On October 3, 2003, Plaintiffs filed an 
Opposition to Interior Defendants’ Motion for Protective Order (“Opposition”).’ 
In the Motion for a Protective Order, hterior demonstrated that a protective order from 
the Anson Baker Discovery is warranted on two distinct grounds: (1) under the Federal Rules of 
Civil Procedure all discovery is currently unauthorized in this case; and (2) the Anson Baker 
Discovery is unrelated to any justiciable issue in this case and not reasonably calculated to lead to 
admissible evidence. In their Opposition, Plaintiffs do not cite any provision of the Federal 
li Plaintiffs have merged in a “consolidated” paper their Opposition to Interior’s Motion for a 
Protective Order with their own Motion to Cotnpel the Anson Baker Discovery. Lnterior will file 
a separate opposition to the Motion to Compel. It should be noted, however, that Plaintiffs failed 
to inforni the Court in their Motion to Conipel that on September 23, 2003, Interior timely served 
a response that interposed objections to Plaintiffs’ Anson Baker document requests. Rules of Civil Procedure that authorizes discovery at this time. Instead, Plaintiffs rely solely on 
the language from this Court’s September 17,2002 Order which reinstated their “full discovery” 
rights. See Opposition at 7-8. The September 17 Order, however, merely restored the usual 
discovery rights that had been denied Plaintiffs by a previous order. After entry of the September 
17 Order Plaintiffs were back in the same position as any other litigant would be with regard to 
their discovery rights. Plaintiffs do not, and cannot, explain how the September 17 Order granted 
them discovery rights that exceed the limits established by the Federal Rules of Civil Procedure. 
Simple incantation of language from the September 17 Order docs not magically bestow upon 
them discovery powers that are unavailable to other litigants. Rather, Plaintiffs are bound by the 
Federal Rulcs, which forbid discovery prior to a Rule 26(f) planning conference, as described in 
the Motion for Protective Order.2 See Fed. R. Civ. P. 26(d). 
Plaintiffs also fail to identify any genuine issue in this case to which the requested Anson 
Baker Discovery would be relevant. This Court has expressly recognized, and it is the law of the 
case, that appraisals relate to trust asset management obligations. Cobell v. Babbitt, 91 F. Supp. 
2d 1 , 18 (D.D.C. 1999) (appraisals “are important for evaluating whether the trustee is managing 
the underlying assets prudently”). This Court has also already determined that “asset 
management is not part of this lawsuit.” !d. (emphasis added). Even if this were not the case, 
however, thcsc general trust obligations would only be relcvant to the Phase 1 or Phase 1.5 trials 
One exception to this prohibition is that Rule 27(b) permits a district court to allow, upon 
motion that sets forth certain prescribed information, the taking of depositions of witnesses to 
perpetuate testimony “for use in the event of further proceedings in the district court,” pending 
appeal of a judgment. Fed. R. Civ. P. 27(b). Plaintiffs have not filed any such motion for the 
Anson Baker deposition and have obviously not met the requirements of Rule 27. 
2 and those proceedings have already been completed, and thus further discovery is neither 
required nor permitted. 
Plaintiffs assert that an appraisal is relevant to an accounting, see Opposition at 2-4, but 
make no effort to demonstrate how it is rele~ant.~ Interior disputes the relevance of appraisals to 
an accounting. See Interior Defendants’ Response and Objections to Special Master’s Site Visit 
Report to the Office of Appraisal Services in Gallup, New Mexico and the Bureau of Indian 
Affairs Navajo Realty Office in Window Rock, Arizona at 5- 10 (filed September 4, 2003); 
Motion for Protective Order at 3. The issue of relevance does not need to be decided now, 
however. Under any circumstances, the only appropriate time for the Anson Baker Discovery 
would be after the scope of some future proceeding, and the discovery needed to address the 
issues in any such proceeding, have been identified by the Court. 
Interior has demonstrated that the requested Anson Baker Discovery is both untimely and 
not gerrnane to any currently disputed issue in this case. Good cause for a protective order 
preventing such discovery at this timc has thus been shown and Interior’s Motion for a Protective 
Order should be granted.4 
21 Lnstead of discussing how an appraisal is relevant to an accounting, Plaintiffs go to great 
lengths, see Opposition at 2-4, 9-10, explaining what Lnterior conceded in its Motion for a 
Protective Order: that an appraisal is relevant to the management of trust assets and might be 
relevant to a damages claim, neither of which is a justiciable issue here. Motion for a 
Protective Order at 3. 
!i It is unclear whether Plaintiffs have withdrawn some of their document requests. They refer to 
an agreement they have made with Anson Baker’s personal counsel that “personal” issues are not 
the subject of the current discovery. & Opposition at 5 . But the discovery requests were made 
both to Mr. Baker and to the Interior Defendants. See Notice of Deposition and Request for 
Production of Documents at 1-2. As of the date of this submission Plaintiffs have not 
unambiguously withdrawn any request directed to Interior Defendants. 
3 Dated: October 14, 2003 
CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
D.C. B ~ N o . 261495 
Deputy Director 
JOHN T. STEMPLEWTCZ 
Senior Trial Counsel 
PHILLIP M. SELIGMAN 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-7 194 
4 CERTFICATE OF SERVICE 
I declare under penalty of perjury that, on October 14,2003, I served the foregoing 
Interior Defendants’ Reply in Support of Motion for a Protective Order Regarding Plaintiffs 
Notice of Deposition of Anson Baker And Request for Production of Documents by facsimile in 
accordance with their written request of October 3 1 , 2001 upon: 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
17 12 N Street, N. W. 
Washington, D. C . 2 003 6-2 9 76 
(202) 822-0068 
By Facsimile and US. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1 7 17 Pennsylvania Avenue, N. W., 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Per the Court’s Order of April 17,2003, 
by Facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1 100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
PDF Copy by E-Mail Upon: 
Rod Lewis, Esq. 
Davis, Wright & Tremaine, LLP 
1300 SW Fifth Avenue, SW 
Suite 2300 
Portland, OR 97201-5630 
E-Mai 1 : rodlewis@,dwt .com 
Counsel for Anson Baker