ZZ ..... 711 · 9 _ _ .) IN THE UNITED STATES DISTRiCT CO[YRT FOR THE DISTRICT OF COLUMBIA ....... -' ... _ ,'7 _,---_-_'_ f,{ -' r,,_ ELOUISE PEPiON COBEI,L, et al.. ) ) Plaintif_, ) ) v. ) CaseNo. 1:96CV01285 (RCL) ) (Judge Lamberth) GALE A. NORTON, Secretary offi'_e hlterior, ct al.,) ) Defendants. ) ) xr - ! INTERIOR DEFE, DAN IS MEMOtL4NDU31 OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL TESTIMONY OF DONNA ERWIN The Secretao' of the Interior and the Assistant Secretary - Indian Affairs ("Interior Defendants") submit the tbllowing memorandum of points and attthorities in opposition to "Plaintiffs' Motion To Compel Testimony Of Donna Erwin Who Was Impermissibly Directed By Defendants' Counsel Not To Answer Questions On The Basis of Atiomey Client Privilege Arid Harassment And Request For Sanctions Pursuant To Rule 37(4)(A) [sic]." ("Plaintifi¥ Motion"). SUMMARY OF ARGUMENT This Court should deny Plaintiffs' motion to compel bis. Erwin's testimony because the testimony sought (1) would reveal privileged attorney-client communications; and (2) is not within the scope of discovery for which the deposition was ordered. Plaintiffs' irrelevant and harassing deposition questioning, in wtnich Plaintiffs' counsel repeatedly asked Ms. Erwin questions intended to cause her to reveal attorney client communications, strayed away from any' proper purpose in noticing the deposition, i.e., discoverT regarding the January 6, 2003 plans ("January 6 Plans"). Their motion constitutes 5'et another unwalTanted attack on the individuals working on mist rcfonn as well as on Government counsel. Further, Plaimif£s' request for sanctions pursuant to Rule 37(a)(4)(A) should be rejected because the asscrtiorls of privilege were substantially justified. .BACKGROUND On December 9, 2002, Plaintiffs noticed the deposition of Donna Erwin, Acting Special Trustee and Bert Edwards, Director, Office of [tistorical Trust Accounting. Interior Defendants promptl.y moved for a protective order and on December 13, 2002. this Court held a hearing. Plaintiffs stated both prior to and during the hearing that they needed to depose Ms. Erwin and Mr. Edwards prior to Janua U, 6. 2003 in order to obtain discovery for preparation of their "accounting" plan. December 13, 2002 Hearing Transcript ("Dec. 13 Hearing Tr.") at l 1; Report and Recomrnendation of the Special Master-Monitor dated December 12. 2002 at 4 (recounting Plaintifig' counsel's argument ti-om the discovery conference). Interior Defendants did not oppose the depositions, but argued that having them scheduled prior to Janua O' 6 would interfere with preparation of the Department of Interior's January 6 Plans. Dec 13 Hearing Tr. at 7. During the hearing, in addition to other arguments in favor of a protective order, Goverrunent counsel argued that having the deposition noticed for Washington, D.C., meant that Ms. Erwin, whose office is in Albuquerque, New Mexico, would be taken away from work for four days - two days of round-trip travel, one day of preparation, and one ]Despite PlaintifFs' representations, the contents of Plaintiffs' plans give no indication why it was ncccssa_ 7 to take Ms. Erwin's ctet, osition prior to January 6, 2003. -2 - da}, for the deposition itself. Id. at 12-13. hi response to questions by the Court, Government counsel stated that it was his understanding that Ms. Erwin was planning a family trip to Florida during the holidays but that it was his understanding that she did not plan to be in Washington, D.C., prior to January 6. Id_. at 13-14. The Court denied Interior Defendants' Motion For Protective Order, but ordered that Ms. Erwin's deposition be scheduled to take place in Albuquerque. I_d. at 14. On Monday, December 16, 2002, Plaintiffs' counsel learned that Ms. Erwin was scheduled to travel to Washington, D.C., that same day in order to attend a Tribal Task Force Meeting scheduled to take place that day and the next day, Tuesday, December 17th. IXls. Erwin (lid amve in \Vashington, D.C., on the afternoon of December 16th. On December 17, 2002, at Plaintiffs' request, this Court held another hearing concerning the scheduling of Ms. Erwin's deposition. Plaintiffs requested that they Em m s presence here. be pennitted to take Ms. Em, in's deposition in \Vashinaton, D.C., citing Ms. _' ' December 17.20(i)2 Hearing Transcript ("Dec. 17 Hearing Tr.") at 4. During the December 17 hearing, Government counsel stated that on December 13, he had no indication that Ms. Erwin was going to be traveling to Washington, D.C. Id. at 9. He explained that, although he had not been aware of it, Ms. Erwin initially made plans to travel to the Tribal Task Force meeting prior to receiving notice of the deposition. Id. Government counsel further explained that Ms. Er\\in, upon learning of the notice of the deposition, decided to postpone a decision on travel to Washington, D.C. until the question of her noticed deposition appearance could be resolved. I(_!. at 10. Gox'emnlent counsel stated that Ms. Erwirfs thinking was that if the deposition was to be scheduled in Washington, D.C., then she would not travel to Washington, D.C., for the Tribal Task Force meeting; however, if the deposition were postponed or scheduled for Albuquerque, then she would to travel to Washington, D.C., to attend the meeting, lc_j. at 9-10. h_ response to this explanation, tile Court asked, "it's a deliberate attempt to deceive tile Court, isn't it'?" I dd. at 12. Government counsel answered that there was Ilo deliberate attempt by Ms. Erwin to mislead the Court. Id. at 13. Government counsel had explained earlier in the hearing that the conthsion resulted because Ms. EmSn's plan apparently was a contingent one, i.e., that she would make her decision to travel to Washington, D.C., based on the outcome of the hearing and that prior to the hearing, her travel plans were up in the air. Id. at 9-10. The Court ultimately amended its previous el-der and ordered that Ms. Er, yin be deposed in Washingtola. D.C.. on Friday, December 20. Plaintifl_' counsel deposed/',,Is. Erwin on December 20. Just before tile end of the agreed upon time for the deposition, aware that Ms. Erwin had to leave to catch her plane, and inconsistent with prior representations to the Court that Plaintiffs needed to depose Ms. Erwin prior to Januao, 6 for the puq,ose of'obtaining infom_ation for their ,larmar5' 6 l'lans. Plaintifl_' counsel launched into xx holly in'elevant questions concerning the scheduling of Ms. Erwin's deposition. The fbllowmg colloquy OCCUlTed: Mr. Brown: You were present in Court on December 17 at a hearing, do you remember that hearing? Ms. E_vin: Yes. Mr. Brown: As you left the Court you said something to the effect that I'm not going to take this an}_nore. What were you referring to'? Ms. Erwin: Concerns regarding tile outcome of the hearing. Mr. Brown: Can you explain that a little more? Let the record reflect there's a conference between counsel and client. (Offthe record.) Ms. Erwin: I felt that the Court had perceived that I had been less than tmthfifi and felt that was not an accurate depiction. Mr. Brown: Because you had been fully truthfifi with your attorneys? Government counsel: You can answer that. Ms. Erwin: Yes. Mr. Brown: And you believe your attorneys haxe been full 5' trutlnful wifi_ the Court? Government counsel: I'm going to object oil ttlat on the grounds that it's protected by the attorney-client privilege. Er-win Dep. Tr. at 283-84. Plaintiffs' counsel continued repeatedly to ask multiple variations of the sarne question, plainly attempting to elicit what Ms. Erwin told Government counsel. 2 IA. at 286, 291. 294-95, and 295-96. 2 Plaintiffs' counsel repeated the question several times in various lbnns: Q You've sat in that courtroom You heard what was represented to the Court by your attorneys. Were those representations accurate? Erwin Dep. 'Fr. at 286. Q Do you believe tile Justice Department made misrepresentations in Court in the hearing you attended in anything they said? I..dd. at 291. Q Do you believe the Justice Department counsel made misrepresentations concerning your availability to come to Washington, D.C.'? IA. at 291. Q Did the Department of Justice rnake a misrepresentation to the Court, in your opinion, based upon what you heard in Corn-t, when you were present on the 17th? ... As to 3'our availability tk-,r deposition in Washington, D.C.? Id. at 294-95. -5 - Govermncnt counsel objected and instructed Ms. Erwin not to answer based on the attorney-client privilege. Ld. Plaintiff_,' counsel engaged in what can only be viewed as ail attempt to harass Ms. Ep,vin by repeatedly asking her the same in-elevant question after she was instructed not to answer by counsel. I_dd. Plaintiffs' counsel also appears to have deliberately waited until the end of Ms. Elwvin's deposition, with her departure by plane irnmincnt? in order to fm-ther harass the witness. Indeed, had Plaintiffs chosen to attempt this line of questioning earlier in the day, it may have been resolved before the witness had to leave. ) ' ' ' 1 t lanm frs counsel also engaged in what can reasonaMv be x'iewed as ail atternpt to intimidate Ms. Erwin into answering tile questions, by making the unfounded accusation that Ms. Erwin ,,',:as being coached, by asking her to answer tile question in her "personal" capaciU', and by asking her il'she had obtained private counsel, even though her deposition had been noticed solely as to her official capacity. Erwin Dep. Tr. at 288-289, 293. Following the harassment by Plaintiffs' counsel, Ms. Erwin was visibly and understandably upset. Idd. att 296. Despite tile fiqct that tile deposition was limited in scope to tile January 6 Plans and Ms. Erwin appeared for and answered questions concerning the same, Plaintiffs nevertheless now move to compel answers to their irrelevant questions concerning Ms. E_vin's privileged comnmnications with counsel. Q When you were sitting in that comlroom, at the end of the hearing, did vou have an opinion, >,'es or no. ax to whether or not the Department of Justice ;``'as making a misrepresentation to the Court on any subject? 1_. at 295-96. - 0- Argument I. Plaintiffs' Motion To Compel PrM!eged Communications Should Be Denied. A. The Testimony Plaintiffs Seek To Compel Is Protected By The Attorney-Client Privilege. The attorney-client privilege protects communications between client and attorney. The privilege applies if: (1) the asserted hokter of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar ora court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which tile attorney was informed (a) by his client (b) without the presence of strangers (c) for thc purpose of securing primarily either (i) an opinion on lax',, or (ii) legal services or (iii) assistance in some legal proceeding, and not (id) for the puq_ose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Sealed Case. 737 F.2d 94, 98-99 'D.C. Cir. 1984). The assertion of privilege in this case unquestionably rneets all of the elements of the attorney- client privilege: (1) Ms. Erwin's deposition ,,,,'as sought in her capacity as Acting Special Trustee, i.e., as a government official and thus the client of Governlnent counsel. In thc context of tile federal government, the agency is the client and tile Department of Justice or agency counsel is the attorney. T s_x Analysts v. IRS, 117 F.3d 607,618 (D.C. Cir. 1997); United States v. Edclin, 128 F. Supp. 2d. 23, 40 (D.D.C. 2001). (2) Government Cotmsel, with whom Ms. E_vin had communicated regarding her obligation to appear at the deposition as noticed, is a member of the bar and was acting as a lawyer when Ms. Erwin communicated with him. (3) Ms. Erwin communicated with Government Counsel in her official capacity tbr the purpose of obtaining his legal advice, legal services, and assistance with -7- respect to the ultimate determination of whether she w'ould be required to appear for tile deposition as noticed. Dec. 17 Hearing Tr. at 6-9. (4) Tile United States, through counsel, claimed tile privilege and has not waived it. Em, in Dep. Tr. at 283-86. 291,294-96. Plaintiffs' deposition questions would require Ms. Erwin to reveal her communications to Government counsel concerning her obligations vis-a-vis the deposition notice. Plaintiffs' counsel asked, m various ways, lbr Ms. Erwin to disclose whether the facts recited by Government counsel in court were accurate. Em'in Dep. Tr. at 283-84, 286, 291,294-95,295-96. Those questions were a back-door xxay of requiring Ms. Etqvin to reveal what she had communicated to counsel. Forcing Ms. Em'in to testif? that the statements made by Government counsel were "in her opinion" accurate or inaccurate would be compelling her to reveal v, hat she had told her attorney and thus would violate the privilege. Plaintifi_ should not be pemlitted to violate the privilege in this manner. Courts have refused to compel discoveo; in analogous circumstances where the discovery sought would reveal attorney- client communications. See, e.,_., In re Sea[cd Case. 737 F.2d at 99 (conununication was protected where it would reveal tile content of the confidential client communications the privilege ,,,,,as created to encourage); Alexander v. FBI. 186 F.R.D. 21,47 (D.D.C. 1998) (deposition questions inquiring as to what deponent did with Ilex' counsel in order to prepare fbr deposition sought information protected by attorney-client privilege); Bover v. Bd. of County Corem'rs, 162 F.R.D. 687, 690 (D. Kan. 1995) (deposition inquiry concerning communications between county's attorney and county employee was precluded by attorney-client privilege); Nakajima v. General Motors Corp., 857 F. Supp. 100, 105 n.l 1 (D.D.C. 1994) (any comrnunications between client and his counsel in preparation for a -8- deposition were protected by the attorney-client privilege and not discoverable); see also Paul R. Rice, ,Attorney-Client Privilege the United States, ¢ 5: l, at 80 (2d ed. 1999) CNeither tile client nor tile attorney may be required to reveal, directly (through testimony or responses to discovery demands) or indirectly (through the disclosure of tile attorney's responsive communications or the attorney's notes), what the client said or communicated to the attonley or to the attorney's agent.") Plaintiffs argue that they are merely seeking to compel Ms. Erwin's testimony regarding underlying facts and that such l_cts are not protected by the attorney-client privilege. Plaintiffs' Motion at 9-1 l. While it is true that the attorn%,-client privilege only protects comrnunications and does not protect underlying facts, that is not what Plaintiff,s are seeking to compel here. Rather, they have sought to uncover the actual cominunications hetween Ms. Erwin and Government counsel. This attempt to invade the privilege should be rcdected. "The privilege serves the important public policy of facilitating fi'ce discussions between a client and attorney, and should not be lightly disregarded." Finley Assoc., Inc. v. Sea & Pines Consol. Corp., 714 F. Supp. 110, 117 (D. Del. 1989). Plaintift_ cite no authority that supports the type of back-door invasion of privileged communications they are attempting here. Plaintiflg do cite authority in support of the proposition that underlying facts are not prix ilcged; however, those cases are inapposite here because the "facts" Plaintiffs are seeking are thc ye; y substance of the communications between Ms. Erwin and -9- Government counsel) The assertion of privilege here is to protect Ms. Erwin's communications with counsel as opposed to underlying facts. 4 C. Ms. Erwin's Communications With Counsel Are Privileged Under The Court's December 23, 2002 Memorandum and Order Plaintifik, citing tile Court's December 23, 2002 Memorandum and Order, also assert that "trustee-delegates may assert n_oo attorney client privilege vis-a-vis 500,000 individual hldian trust beneficiaries." Plaintiffs' Motion at 9. ttowever, PlaintifiV inteq>retation of the Court's December 23, 2002 Order conveniently ignores the express language of the Court's accompanying Memorandum which states, "Tile Corn1 vdll, consistent with logic and prevailing authority, recognize the existence of an attorney-client privilege where a trustee seeks legal advice solely in his own personal interest or where tile discovery material has been shown to relate exclusiveh, to non-fiducia O' nmtters." Dec. 23, 2002 Memorandum and Order at 10. Discovery as to Ms. Erwin's communications witln counsel concerning her appearance at a noticed deposition for the litigation is. on its fi_ce, a non-fiducia D' matter 3 For example. Plaintiffs cite Llpjohn v. United States, 449 U.S. 383, 395-96 (198I), in which the Court held that the attorney client privilege prevented the Government fi'om obtaining a corporation's attorneys' notes, but not from questioning employees concerning the underlying facts. Plaintiffs' Motion at 10. TI'mt case is inapposite to the circumstances here. Plaintifi_ also argue that Govermnent counsel impermissibly objected on the grounds that Mr. Brown was harassing the witness. Plaintiffs' Motion at 11, n.2. However, Rule 30(c) states that, "All objections made at the tirne of the examination.., to tine conduct of any party.., shall be noted by the officer upon the record of the deposition." Since Mr. Brown was harassing tile witness and causing her to become visibly upset, Erwin Dep. Tr. at 296, by repeatedly asking her the same question about a privileged matter- at the end oftlne agrecd time for the deposition wlnen the witness had to catctn a plane Goven-unent counsel properly noted such belnavior on tile record. See also Red. R. Civ. P. 30(d)(1 ), 30(d)(4). -10- that relates solely to litigation. Although Interior Defendants respectfully disa_'ee with certain aspects of the Court's December 23, 2002 Order, that Order does not eliminate the availability of the privilege asserted iT1 these circumstances. D. The Crime/Fraud Exception Does Nol Apply Plaintiffs claim ill a footnote, and apparently in the alternative, that even if the testimony they seek to compel is privileged, the question should still be answered, based on the crime/fraud exception to the attorney-client privilege. Plaintiffs' Motion at 14 n.3. Plaintiffs have not met their burden of establishing ttnaI the crime, fraud exception should apply. For this exception to apply, Plaintiffs must establish that thc client participated ii1 a crime or ii'aud, and consulted with an attorney fbr tile purpose of furthering the crime or fraud. Alexander v. FBI, 198 F.R.D. 306, 310 (D.D.C. 2000). The party seeking to demonstrate the applicability of the crime/fi'and exception rnust offer evidence of"an ongoing or imminent crime or fraud," and that the client consulted with his attorney for that purpose. Id. "IT]he party seeking to overcome the privilege [has] the burden of shoxving that the crime-fi'and exception applie[s]." In re Sealed Case, 107 F.3d 46, 49 (D.C. Cir. 1997). To meet this burden, the party opposing the privilege must establish a pti,tel/dele case consisting of "cvidence that if believed bv tine trier of fact would establish the elements of all ongoing or imminent crime or fi-aud." In re Sealed Case. 754 F.2d 395,399 (D.C. Cir. ] 985). A bare allegation of wrongdoing is insufficient, hi re MI,-Lee Acquisition Fund Il, L.P;, 848 F. Supp. 527, 565 (D. Del. 1994). Plaintiffs have failed to make the prima facie showing necessary to dispense with tine attorney- client privilege under tine crime/fi'and exception. Plaintiffs would have tine Court assume that either Ms. -11- Erwin or Government counsel committed fraud, apparently failing to consider a good faith explanation for tile confilsion over whether Ms. Er,yin planned to travel to Washington, D.C. Consistent with Govennnent counsel's argument at tile December 17 hearing, tile situation is readily explained as "[alt the very most.., an unintentional, inadvertent misunderstanding" between vd-mt Ms. Erwin intended to convey regarding her availability and what was actually conveyed at the December 13 hearing. Dec. 17 Hearing Tr. at 5. In any event, Plaintiffs have riffled to present a primafi_cie case of fraud. 5 E. The Testimony Plaintiffs Seek To Compel Is Neither Relevant Nor Reasonably Calculated To Lead To The Discovery Of Admissible Evidence In Triad Phase 1.5, Which Governs The Scope Of Discovery. This Court should not even reach the issue of whether the testimony Plaintiffs are seeking to elicit fi-om Ms. Erx_ in contains privileged comnmnicafions because Plaintiffs have no legitimate need to compel testimony concerning the scheduling of Ms. Erwin's deposition, which has already occurred. While relevancy was not the specific basis asserted by Government counsel during the deposition, Plaintiffs should not be able to compel testimony that is neither relevant nor reasonably calculated to lead the discovery of admissible evidence and hence, not within thc scope of Rule 26(b)(1). Although the scope of permissible discovery is broad, "it is not so liberal as to allow a party to 'roam in shadow zones of relevancy and to explore fa] matter which does not presently appear germane on the theory, s Ms. Erwin explained at the December 17 hearing that she made her reservations but then put her plans on hold pending the scheduling of her deposition. Dec. 17 Hearing Tr. at 15. Neither Ms. Erwin's contingent plans to travel to Washington, D.C., nor the unfortunate fact that both Governrnent counsel were unaware of them, constitutes deception or fraud upon the Court. Plaintiffs' choice to ignore Ms. Erwin's explanation does not convert it into deception, much less fraud. -12- that it might conceivably become so."' Inre Fontaii_, 402 F. Supp. 1219, 1221, (E.D.N.Y. 1975) (internal citations omitted). The scope of Ms. Erwin's deposition was properly limited to the January 6 Plans, as indicated by Plaintiffs' representations concerning the same. Inquiries into communications between Ms. Erwin and Govenm'_ent counsel concerning Ms. E_vin's schedule have no bearing on the plans, trust reform, or this case. Plaintiffs specifically represented to tile Court during the Decernber 13 hearing that the purpose of Ms. Erwin's and Mr. Edwards' depositions was to assist them in preparing their plan in anticipation of the Court's January 6.20(i)3 deadline. Dec. 13 }leafing Tr. at I 1. Plaintiffs' counsel made similar representations in a discoveo, conference with the Special Master-Monitor. See Report and Recommendation of the Spccial Master-Monitor of Dec. 12.2002 at 4. Moreover, at the begirming of Ms. Erwin's deposition, Government counsel reminded PlaintifI_;' counsel that the deposition had been ordered based on such representations to tile Court. Erwin Dep. Tr. at 6-7. Even if. as Plaintiffk now contend, the scope of thc depositions was not so limited, it certainly must be limited to matters to be decided in Trial 1.5, which do not include Ms. Erwin's scheduling isstles. Plaintiffs claim in their Motion that questions concerning the scheduling of Ms. Erwin's deposition are relevant because they go "directly to isstics of continuing fraud on the court and the absence of integrity of Ms. Em'in, the acting special trustee and a prime architect of dei_ndants' January; 6, 2003 Plan." Plaintiffs' Motion at 9. That proffer of relevancy is insufficient for at least two reasons: First, Plaintiffs do not have a mandate to expand the scope ofdiscove U, based on their unilateral view that there is or lnas been a continuing fraud on tine Court. The deposition was for discoveo' related to -13- preparation of tile Januaw 6 Plans. Second, Plaintiffs have not come close to alleging the elements for fraud on tile Court. "Fraud on the court" requires a showing of intent to deceive or intent to defraud the comnt. United States v. Buck, 281 F.3d 1336. 1342 (10th Cir. 2002) ("[T]hcre must be a showing of conscious wrongdoing - what can be characterized as a deliberate scheme to defi'aud before relief from a final judgment is appropriate[.]") (citations omitted). II. Plaintiffs' Request For Sanctions Must Be Rejected Because The Assertion Of Privilege Was Substantially Justified In adjudicating discovery disputes, sanctions are not appropriate if the losing party was "substantially justified" in advancing its position. FED. R. CIV. P. 37(a)(4)(A). "Substantially justified" generally means that there is no clear answer to the particular issue in dispute and that opposing viewpoints may theretbre be defensible. As this Court has observed, "a party meets the 'substantially justified' standard when there is a 'genuine dispute' or if'reasonable people could differ' as to the appropriateness of the motion." Alexander v. FBI, 186 F.R.D. 144. 147 (D.D.C. 1999) (citing Pierce v. Underwood, 487 U.S. 552 (1988)). "If there is an absence of controlling authority, and the issue presented is one not i¥cc fi'om doubt and could engender a responsible difference of opinion among conscientious, diligent but reasonable advocates, then the opposing positions taken by them are substantially justified." Athridge v. Acma Cas. & Sur. Co., 184 F.R.D. 200, 205 (DD.C. 1998) (citations omitted). if the [issue] raises a genuine issue among reasonable lawyers, the losing position is fourld to be substantially justified .... Speaking more practically, when there is no controlling precedent on the issue, and counsel marshals what authority there is in -14- support of her position, the position she articulates will be found to be substantially justified even if it does not prevail. Boca Investerings P'ship v. United States, No. 97-602PLF/JMF. 1998 WL 647214, at *1 (D.D.C. Sept. 1, 1998), 9vemded on other grounds, __ F.3d , No. 01-5429 (D.D.C. Jan. 10, 2003), U.S. Court of Appeals for the D.C. Circuit Opinions, Most Recently Released Opinions (visited Jan. 15, 2003) (internal citations omitted). tntcrior Defendants' asseFtion of privilege xxas legally correct, but even it were. after tile fact, found not to be, it still would be substantially justified. As set forth in section I, supra, the attorney client privilege protects against both direct and indirect attempts to discover privileged communications. Here, Plaintiffs did not seek to compel mere lhcts, but asked questions that would have caused Ms. Em, in to reveal communications with her attorneys. Government counsel was not only substantially justified, but obligated to asseFt privilege to protect those communications on behalf of her client. Regardless of what the Court ultimately rules, a reasonable argument existed that the answer to those questions would violate the attorney-client privilege. Plaintiffs, on the other hand, cite no legal authority to the contra_ and cite only cases standing for the general proposition that underlying facts are not privileged. Plaintiffs cite no cases condoning their back-door approach to invasion of prbilege. Aside fi-om the actual questions asked, the totality of the circumstances strongly indicates that the assertion of privilege was substantially justified. See Gregory P. Joseph, _Sanctions: The Law of Federal Litigation Abuse § 48(E) at 595 (3d ed. 2000) ("Whether a party's failure to disclose was -15- substantiallyjustified is a fact question to be decided on tile totality of the circumstances."). No evidence supports Plaintiffs' allegations that privilege was asserted ii1 bad faith. See Hinton v. Patnaude. 162 F.R.D. 435,439 (N.D.N.Y. 1995) (lack of evidence of bad faith by party failing to disclose was factor in finding that it was substantially justified). There was no bad faith attempt to foreclose a line of questioning. To tile contrao,, Government counsel initially allowed Ms. Erwin to answer the purely factual questions, then conferred with Ms. Erwin and allowed her to answer two more factual questions, until Plaintiffs' attorney started asking Ms. Erwin to reveal privileged communications. Em'in Dep. Tr. at 283-284. Plaintiffs' counsel sprang these questions on the witness toward the ve_ T end of the deposition, which they had previously represented as being limited to discoveo, on the January 6 Plans. Government counsel only briefly conferred with Ms. Erwin and, after doing so, was accused of"coaching" her) Erwin Dep. Tr. at 293. Moreover, with his questions, Plaintiftk' counsel went well beyond the scope ofdiscovelT related to plan preparation. See Section I.E, supra. Finally, to the extent tile Court's December 23. 2002 Order controls this assertion of privilege, the Order had not yet been issued. Plaintiffs also request that any sanctions awarded against the Government be paid by the witness and Government counsel. Plaintiffs' Motion at 12-16. Plaintiffs have asserted no basis to impose personal sanctions on a government attorney and government official based on the assertion of c, Although Plaintiffs' counsel accused Government counsel of"coaching" Ms. Erwin, it was perfectly proper for Ms. El_vin to consult with Government Counsel to determine whether she could respond consistent with the privilege. The _ el-y' brief consultation did not cause any material dely in the deposition, particularly since Plaintiffs apparently had already concluded their questioning regarding the January 6 Plans. -16- attorney-client privilege. These circumstances come nowhere near the ts_pe of conduct that could justi[v imposing personal sanctions. Sec United States v. Shaffer Equip. Co., 158 F.R.D. 80, 86, 87, 88 (S.D.W.Va. 1994) (award of personal sanctions appropriate where government attorneys knew of perju_ by government witness but did not disclose it); Chilcutt v. United States., 4 F.3d 1313, 1322-24 (5th Cir. 1993) cert. denied, 513 U.S. 979 (1994) (award of personal sanctions under Rule 37 against government attorney where court had previously personally sanctioned government attorney for similar misconduct, and xx here govermnent attorney "not only intentionally withheld documents that [he] knew cxisted, but ... also knowingly made blatant misrepresentations to thc district court about the existence oF those documents"). -17- CONCLUSION For the foregoing reasons, Plaintifi_' Motion To Compel Testimony and Request For Sanctions should be denied. RespectFully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SC[tIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director SANDRA P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWiCZ Senior Trial Attorney / %' .df J TI'_ OTtf'x E. C ,'RLE5 Trial Altomey D.C. Bar No. 47(i)450 Commercial Litigalion Branch Civil Division United States Department of Justice P.O. Box 875 Ben Frank lin Station Washington, D.C. 20044-0875 (202) 307-0183 Dated: January 15, 2003 -18- IN TIlE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al.. ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE NORTON, SecretaD' of the Interior, et al., ) ) Del;andants. ) ) ORDER This matter comes before the Court oil PlaintifiT "Motion To Compel Testimony Of Donna Er'Mn Who Was Impermissibly Directed Bv DeFendants' Counsel Not To Answer Questions On tile Basis OF Attorney Client Privilege And Harassment And Request For Sanctions Pursuant To Rule 3 7(4)(A) [sic] And Memorandum Of Points And Authorities In Support of Said Motion" filed JanuatT 1,2003. Upon consideration of this Motion and Request for Sanctions and Defendants' responses thereto, it is HEREBY: ORDERED that PlaintiftT Motion To Compel Testimony is DENIED. It is filrther ORDERED that Plaintiffs' request For sanctions pursuant to Rule 37(a)(4)(A) is DENIED. It is fnrther ORDERED that Plaintiffs' request that Sandra Spooner and Donna Erwin personally shall pay attorneys' fees and all costs associated with tine depositions of Ms. Erwin is DENIED. SO ORDERED this __ day of .2003. ROYCE C. LAMBER'Hi United States District Judge CC: Sandra P. Spooner John T. Sternplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Bell Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Deimis iX.] Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 2C2-.>18-2372 Keith ttarpcr, Esq. Native Arnerican Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas. Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 CERTIFICATE OF SERVICE I declare under penalty of perjury that, on Janua_ 15, 2003 I served the foregoing Interior Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Compel Testimony of Donna Erwm by facsimile in accordance with their written request of October 31,2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 Washington, D.C. 20004 (202) 318-2372 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta. GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pemlsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 By ttand upon: Joseph S. Kieft_r, III Special Master Monitor 420 T h Street, N.W. Apartment 705 Washington, D.C. 20004 (202) 478-1958 Kevin P. Kingston 7/ /