IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 (RCL) ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) INTERIOR DEFENDANTS' MOTION FOR EXPEDITED CONSIDERATION OF MOTION FOR ORDER (1) ADOPTING THOSE PORTIONS OF THE SPECIAL MASTER-MONITOR'S RECOMMENDATION REGARDING DEPOSITIONS OF NAMED PLAINTIFFS, AND (2) ORDERING NAMED PLAINTIFFS TO APPEAR AND,TESTIFY AT DEPOSITIONS The Secretary of the Interior and the Assistant Secretary' - Indian Affairs ("Interior Defendants" or "Interior"), hereby move for expedited consideration of the "Motion for Order (1) Adopting Those Portions Of The Special Master-Monitor's Recommendation Regarding Depositions of Named Plaintiffs, and (2) Ordering Named Plaintiffs To Appear and Testify at Depositions" (the "Motion"), which interior Defendants have filed on this date. The Motion asks the Court to adopt the recommendation contained in the October 18, 2002 Report and Recommendation of Special Master-Monitor Joseph S. Kiefikr, III, that depositions of the named Plaintiffs proceed. Despite repeated requests, Plaintiffs have refused to provide requested dates for the depositions of the named Plaintiffs other than Plaintiff Elouise CobelI, and Plaintiffs' recent correspondence indicates that the other Plaintifitk will not commit to appearing for depositions. Because discovery must be completed expeditiously, Interior Defendants ask the Court to consider the Motion as promptly as possible, so that the depositions of the remaining named Plaintiffs can be completed soon. Interior Defendants will continue to suffer prejudice unless these depositions are completed prior to the time to submit summary judgment motions at the end of January. Without expedited consideration of the Motion, that is not likely to occur. In order to expedite the resolution of this dispute, Interior Defendants also respectfully request that, if the Court desires to hear the parties' further on this matter, it do so at a hearing or discovery conference, rather than by written briefs. On November 27, 2002, counsel for Interior Defendants conferred by telephone with Mr. Keith Harper, counsel for Plaintiffs, who indicated that Plaintiffs did not consent to this motion. WHEREFORE, Interior Defendants request that the Court enter the attached order granting expedited consideration of the Motion. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney Genera[ J. CHRISTOPHER KOHN Director ...... (-J SANDRA 1_. SPOONER '_ Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney TIMOTHY E. CURLEY -2- D.C. Bar No. 470450 Commercial Litigation Branch Civil Division United States Department of Justice P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 30%0183 Dated: November 27, 2002 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE NORTON, Secretary of the Interior, et all., ) ) Defendants. ) ) ORDER REGARDING INTERIOR DEFENDANTS' MOTION FOR EXPEDITED CONSIDERATION This matter comes before the Court on Defendants' Motion for Expedited Consideration of Interior Defendants' Motion for Order (1) Adopting Those Portions Of The Special Master-Monitor's Recommendation Regarding Depositions of Named Plaintiffs, and (2) Ordering Named Plainti fl_ To Appear and Testify at Depositions. Said motion for expedited consideration is hereby GRANTED. SO ORDERED this __ day of ,2002. ROYCE C. LAMBERTH United States District Judge CC: Sandra P. Spooner John T. Stemplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 EIliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 -2- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on November 27, 2002, I served the foregoing Interior Defendants'Motion for Expedited Consideration of Motion for Order (1) Adopting Those Portions of the Special Master-Monitor's Recommendation Regarding Depositions of Named Plaintif)5, and (2) Ordering Named Plaintiffs to Appear and Testifi_ at Depositions by facsim!le, in accordance with their written request of October 31,2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Brown, Esq. 1712 N Street, NW 1275 Pennsylvania Avenue, NW Washington, DC 20036-2976 Ninth Floor 202-822-0068 Washington, DC 20004 202-318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 and by U.S. Mail and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., NW 12th Floor Washington, DC 20006 202-986-8477 Joseph S. Kieffer, III, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 202-478-t958 fJ Sean P. Schmergel IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintifik, ) ) v. ) Case No. 1:96CV01285 (RCL) ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) .) INTERIOR DEFENDANTS' MOTION FOR ORDER (1) ADOPTING THOSE PORTIONS OF THE SPECIAL MASTER-MONITOR'S RECOMMENDATION REGARDING DEPOSITIONS OF NAMED PLAINTIFFS_ AND (2) ORDERING NAMED PLAINTIFFS TO APPEAR AND TESTIFY AT DEPOSITIONS The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior Defcndants" or "Interior"), pursuant to Fed. R. Civ. P. ("Rule" or "Rules") 53(e)(2), hereby move that (1) this Court enter an order adopting those portions of the October 18, 2002 Report and Recommendation of Special Master-Monitor Joseph S. Kieffer, III (the "Special Master-Monitor") that recommend that the named Plaintiffs submit to depositions, and (2) that this Court order the named Plaintiffs to appear and testify at depositions. Ltl support, Interior Defendants state: t. This motion is presented to the Court (rather than the Special Master-Monitor) because Rule 53(e)(2) provides for parties to apply "to the court for action" upon the report of a special master. This motion asks the Court to enter an order to enforce the Special Master-Monitor's October 18, 2002 recommendation that the named Plaintiffs be deposed. 2. On July 2, 2002, Interior Defendants issued a Notice of Deposition for the deposition of Plaintiff Elouise Cobell. Interior Defendants also requested that Plaintiffs' counsel propose available dates for the depositions of the other named Plaintiffs. 3. Plaintiffs refused to do so, and instead, on or about July 5, 2002, Plaintiffs filed a motion ("Motion to Stay") that sought, among other things, to stay the depositions of all of the named Plaintifik. 4. On or about July 2, 2002, Interior Defendants filed a motion to compel the deposition of Plaintiff Elouise Cobeli. 5. On October 18, 2002, the Special Master Monitor issued a Report and Recommendation 2 regarding, among other things, Plaintiffs' Motion to Stay and Interior Defendants' motion to compel the deposition. 6. The Report and Recommendation (at 2) noted that a motion to compel had been filed only with regard to Ms. Cobell, but that the parties understood that Interior Defendants also planned to '_ Plaintifik' Motion to Stay was entitled, "Motion for Protective Order Seeking (1) Stay of Plaintiffs' Obligation to Respond to Interior Defendants' Request for the Production of Documents, Dated June 5, 2002; (2) Stay of Threatened Depositions of the Five Named Plaintiffs; and (3) Stay of Rule 11 Motion With Respect to Court-Ordered Attorney's Fees. 2 The full title of the Report and Recommendation is, "Report and Recommendation of the Special Master-Monitor on 'Motion for Protective Order Seeking: (i) Stay of Plaintiffs' Obligation to Respond to Interior Defendants' Request for the Production of Documents, Dated June 5, 2002; (2) Stay of Threatened Depositions of the Five Named Plaintiffs; (3) Stay of Rule t 1 Motion With Respect to Court-Ordered Attorney's Fees (Served June 28, 2002)'; and 'Defendants' Motion to Compel Discovery' and 'Defendants' Motion to Compel Appearance and Testimony of Plaintiff Elouise Cobell at Deposition' and 'Defendants' Motion for Sanctions Regarding Submission of False or Misleading Affidavits by Plaintiffs' Attorney Dennis M. Gingold.'" -2- depose the remaining named Plaintifl_. Thus, the Report and Recommendation (at 2, n. 1) stated, "the recommendation regarding the Cobell deposition in this Report and Recommendation, infra, addresses indirectly any such further depositions." The Report and Recommendation (at 13-14) specifically recommended denying Plaintiffs' motion to stay the depositions of the named Plaintiffs, and recommended granting interior Defendants' motion to compel the appearance of PlaintiffCobell at a deposition. 7. On November 1, 2002, Interior Defendants filed their Comments and Objections to the Report and Recommendation, stating agreement with the provisions cited above. 3 8. Plaintiffs filed no objection to the Report and Recommendation. 9. Thereafter, by agreement, the parties scheduled the deposition of Plaintiff Elouise Cobell to begin on December 4, 2002. 10. Interior Defendants requested, orally and in writing on October 23, November 8, and November 22, 2002 (see attached Exhibits 1, 2 and 3, respectively) that Plaintiffs propose available dates for the depositions of the other named PIaintiffs. 11. Plaintiffs' counsel stated that he would provide dates on Friday, November 22, 2002. 12. On November 22, 2002, Plaintiffs' counsel sent a letter (Exhibit 4) refusing to propose deposition dates for the other named Plaintiffs, and instead stating that Plaintiffs were evaluating whether the other named Plaintiffs would submit to depositions, in light of the interior Defendants' having filed 3 Interior objected to other aspects of the Report and Recommendation, which the Court need not reach in order to determine this motion. -3- notices of appeal of certain orders. 13. Accordingly, on November 26, 2002, Interior Defendants issued and served Notices of Deposition of Plaintiffs Earl Old Person, James Larose and Thomas Maulson. See Exhibits 5, 6 and 7. 14. Since the Special Master-Monitor implicitly if not expressly recommended that Plaintiffs submit to depositions, and because the filing of the notices of appeal does not preclude the taking of such depositions (.see attached Memorandum), the depositions of the named Plaintiffs should proceed. 15. On November 27, 2002, counsel for Interior Defendants conferred by telephone with Mr. Keither Harper, counsel for Plaintiffs, who indicated that Plaintiffs would not consent to this motion. WHEREFORE, Interior Defendants request that the Court enter the attached order directing the named Plaintiffs to appear for depositions on dates set by Interior Defendants. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director } ........ SAN DR_ P. SPOONER Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney TIMOTHY E. CURLEY Trial Attorney D.C. Bar No. 470450 Commercial Litigation Branch Civil Division United States Department of Justice P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 307-0183 Dated: November 27th, 2002 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPiON COBELL, et al., ) ) Plainti ftC, ) ) v. ) Case No. 1:96CVOI 285 ) (Judge Lamberth) GALE NORTON, Secretary of the Interior, et al., ) ) Defendants. ) ) ORDER REQUIRING APPEARANCE AND TESTIMONY OF NAMED PLAINTIFFS AT DEPOSITIONS This matter comes before the Court on the following motions: A. Interior Defendants' Motion for Order (1) Adopting Those Portions of the Special Master-Monitor's Recommendation Regarding Depositions of Named Plaintiffs, and (2) Ordering Named Plaintiffs To Appear and Testify at Depositions; and B. Plaintiffs' Motion for Protective Order Seeking (1) Stay of Plaintiffs' Obligation to Respond to Interior Defendants' Request for the Production of Documents, Dated June 5, 2002; (2) Stay of Threatened Depositions of the Five Named Plaintiffs; and (3) Stay of Rule 11 Motion With Respect to Court-Ordered Attorney's Fees. After considering the aforesaid motions, the October 18, 2002 Report and Recommendation of the Special Master-Monitor, any responses to the foregoing, and the record of the case, the Court finds that Interior Defendants' motion should be GRANTED, and Plaintiffs' motion should be DENIED. IT 1S THEREFORE ORDERED that the named Plaintiffs shall appear and testify at depositions on dates set by Interior Defendants. SO ORDERED this __ day of ,2002. ROYCE C. LAMBERTH United States District Judge CC_ Sandra P. Spooner John T. Stemplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American 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 U.S. Department of Justice Civil Division Commercial Litigation Branch [3avid J. Gotte, m an ..... P.O B0_ g7'5 Ben Franklin Station "Tel: (202) 307-0183 Washington. D.C. 2B04t,.O$75 Fax: (2§2) 307-0494 October 23, 2002 BY FAX Mr. Dennis M. Gingold Mr, K. eith Harper Mr. Mark Kester Brown Native American Rights Fund P.O. Box 14464 1712 N. Street, NW Washington, D.C. 20044-4464 Washington, D.C. 20036-2976 Fax: 202/318-2372 Fax: 202/822-0068 Re: Cobell v. Norton, (D.D.C. Case N.o. 1:96CV01285 (RCL)) Dear Counsel: Please advise us of proposed dates for the depositions of the named plaintiffs. The Special Master-Monitor% Report and Recommendation of October 18, 2002, recommends that the Court order the depositions of Ms. Cobell and the other named plaintiffs to proceed. In order to move the process along, we should attempt to find mutuatly agreeable dates for these depositions. We will begin with Ms. Cobelt's deposition first, and we suggest setting aside two days for her deposition. For the remaining named plaintiffs, one day should be set aside for each. However, we cannot predict in advance whether more or less time will be needed for any of the depositions. We propose the following list of possible dates: November 13, 14, 15, 18, I9, 20, 21, 22, 26, 2002. Please [et me know whether each. of the nam_ed ,alain. tiffs is available on each of these': dates. We will then present proposed dates to the Special Master-Monitor, if he wishes to attend and preside at the deposition sessi°ns. Please contact me by October 30, 2002, to let me know whether and on which of the above dates the named plaintiffs wilt be available. Thank you. Commercial Litigation Branch Civil Division EXHIBIT 1 U.S, Department of Justice Civil Division Commercial Litigation Branch Davi d J.:Coiiesman : P.O. Box 875 Bcn Franklin Statio'n .............. Tel; (202)307-0183 Washington, D.C, 20044-0875 Fax: (202) 307-0494 November 8, 2002 BY FAX Mr. Keith Harper Native American Rights Fund 1712 N. Street, NW Washington, D.C. 20036-2976 Fax: 202/822-0068 Re: CobeI1 v. Norton, (D.D.C. Case No_,__I_:96CV0t 285 (RCL)) Dear Mr. Harper: This will confirm our phone conversation of today, setting the deposition of Etouise Cobelt for December 4 and 5, 2002, at this office, 1100 L Street, NW, beginning at 10:00 a.m. each day. This scheduling of Ms. Cobell's deposition assumes that Special Master-Monitor Kieffer is available to attend those sessions. I also requested that you find out proposed dates for the depositions of the remaining named Plaintiffs. Thank you, A_7 truly y°urs_)' n D J. Trial At_mey Commercia[ Litigation Branch Civil Division cc: Mr. Joseph S. Kieffer, III Mr. Dermis M. Gingold Mr. Mark Kester Brown EXHIBIT 2 11/22/2002 16:3,5 FAX 202 ,522 008_ NARF DC -_ SP00NER _o01 ix [CUT[YE Ol_Z-CYO_t Native American Rights Fund _ _,ifh H,JI_'_I' r_.._-, _._,_;,, t 712 N Street N.W.. Wa,'.hing_on, O.C. A003G-2976. C202) 7U5-4166 ' FAX {202) 822-00_8 _AIN O_PtCE S0_, llr_ _walr _oLiIcter, ¢._ 6o302-692_ A ),,i C H i_ P...A I_ 50IcFICl[ 420 L, Strr-ci, .ct_;le ._0,_ ,_,,clloraae, ^it _:01 November 22, 2002 wm,,_ _ao.,_s BY FAX Sandra Spooner U.S. Department of Justice Civil Division Commercial Litigation Bt:tach P.O. Box 875, Ben Franklin Station Washington, D.C. 20004 Re: Cobol.! v. Norton,; Civ. No. 9G1285 Dear Ms. Spooner: I write to respond to your oral request of N'ovember 20 'h for proposed dates for deposition of Louis Larose, Tom Maulson and Ear[ Old Person. We re,et to inform you _at we Mil not be able to provide art answer to th/s issue at this time since we are stili in the process of evaluating _e impact of defendan:s' filing ora notice of appeal of this Cotm's September 17, 2002 orders, and its impact on the issue of whether k is appropriate for defendants to depose these individuals. We wilt notify you of how we intend to proceed upon comp[etlon of oar assessment. Good day. Sincerely', Keith M. Harper cc: Special Master Monitor Joseph S. Kieffcr Iii EXHIBIT 3 _i__. U.S. Department of Justice CMl Division Postal Sertqce Address Street Address P.O. Box 875 Ben Franklin Station 1100 L Sn:eet, N.W.-Room 10146 Washington, D.C. 20044-0875 Washington, D.C, 20005 Ter O, M. Petrie- Trial Attorney Phone (202J307-0267 Fax:(202) 305-4933 November 22, 2002 BY FACSIMILE Keith M. Harper Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 Re: Cobell v. Norton Dear Mr. Harper: I would tike to address the scheduling of depositions. At Mr. Swimmer's deposition this past Wednesday, November 20, you represented that you would provide us today the dates other named plaintiffs (besides Ms. Cobell whose deposition begins on December 4) are aYailable to be deposed. Upon receipt, we will advise you as soon as possible of the acceptability of those dates. As you are aware, we are now less than 45 days from the deadline the Court imposed for the Interior Defendants to file their Plans as part of the Phase t.5 proceeding. The Thanksgiving holiday is next Thursday, the Christmas holiday less than a month later, and followed the next week by New Year's. Given the time commitments required to complete a timely plan and the usual scheduling conflicts posed by the holiday season, I also would like to confirm with you what depositions you desire to take before January 6, 2003. Depending on the witnesses and their schedule, and subject to the scheduling of other depositions in the case, we will attempt to accommodate you so long as the discovery, does not interfere with the work on the plan. Nevertheless, these should be completed between December 9 and December 20, the last really open weeks prior to the holidays and the approaching plan deadline. Consequently, we request that you advise us by next Wednesday, November 27, of what additional testimony you desire to take of government witnesses before January' 6, 2003. [f wc do not receive a list by that date, we will understand that to mean that you do not desire to EXHIBIT 4 depose any other government witnesses until after January 6, 2003. Sincerely, Terry M{_etrie Trial AttlSmey cc.: Special Master'Monitor Joseph S. Kieffer Mark Kester Brown, Esq. _,')_ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al__., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et all..,) ) (Special Master-Monitor ,. Defendants. ) Joseph S. Kieffer, III) ) NOTICE OF DEPOSI_T, ION- EARL__OLD PERSON TO: Mr. Dennis M. Gingold Mr. Keith Harper Mr. Mark Kester Brown Native American Rights Fund P.O. Box 14464 1712 N Street, NW Washington, D.C. 20044'4464 Washington, D.C. 20036-2976 Fax: 202/318-2372 Fax: 202./822-0068 PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30, the Secretary. of the Interior and the Assistant Secretary - Indian Affairs shall conduct the oral deposition of Plaintiff EARL OLD PERSON, at the offices of Defendants' attorneys, U.S. Department of Justice, Civil Division, 1100 L Street NW, Washington, D.C., beginning at 10:00 a.m. on January 8 and January 9, 2003, and, ifnecessaLy, shall continue thereafter on further dates to be scheduled, until completed. EXHIBIT 5 This Notice of Deposition requires the appearance of the above-named deponent for the entirety of the deposition. The deposition will be recorded by sound-and-visual and steno_aphic means. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director SAN:DRA m. SPOqy_R ' · Deputy Director v JOHN T STEMPLEWICZ Senior TriaI Attorney DAVID J. GOTTESMAN Thal Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Tel: (202) 514-7194 Dated: November 6_[O , 2002 -2- CER.T..IFICATE OF SERVICE I declare under penalty of perjury that, on November 26, 2002, I served the foregoing Notice of Deposition - Ear/Old Person by facsimile, ill accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native .american Rights Fund Mark Brown, Esq. 1712 N Street, NW 1275 Pennsylvania Avenue, NW Washington, DC 20036-2976 Ninth Floor 202-822-0068 Washington, DC 20004 202-318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1 100 Peachtree Street, Suite 2800 Atlanta, GA 3030%4530 and by U.S. MaiI and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., NW 12th Floor Washington, DC 20006 202-986-8477 Joseph S. Kieffer, III, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 202-478-1958 Sean P. schmergeI IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al__, ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Larnberth) GALE A. NORTON, Secretary of the Interior, et al..._,.,) ) (Special Master-Monitor Defendants. ) Joseph S. Kieffer, 1TI) .......... . ,,, ) NOTICE OF DEPOSITION.- JAMES LAROSE TO: Mr. Dennis M. Gingold Mr. Keith Harper Mr. Mark Kester Brown Native American Rights Fund P.O. Box 14464 1712 N Street, NS,V Washington, D.C. 20044-4464 Washington, D.C. 20036-2976 Fax: 202/318-2372 Fax: 202/822-0068 PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30, the Secretary of the Interior and the Assistant Secretary - Indian Affairs shall conduct the oral deposition of Plaintiff JAMES LAROSE, at the offices of Defendants' attorneys, U.S. Department of Justice, Civil Division, 1100 L Street NW, Washington, D.C., beginning at 10:00 a.m. on Janua_ 22 and January 23, 2003, and, if necessary, shall continue thereafter on further dates to be scheduled, until completed. EXHIBIT 6 ? This Notice of Depositi0n requires the appearance of the above-named deponent for the entirety of the deposition. The deposition will be recorded by sound-and-visual and steno_aphic means, Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director SANDRA P. SP_N_R Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney DAVD J. GOTTESMAN Thai Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Frm_lin Station Washington, D.C. 20044-0875 Tel: (202) 514-7194 Dated: November '_o_, 2002 -2- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on November 26, 2002, I served the foregoing Notice of Deposition - James Larose 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 Brown, Esq. 1712 N Street, NW I275 Pennsylvania Avenue, NW Washington, DC 20036-2976 Ninth Floor 202-822-0068 Washington, DC 20004 202-318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 and by U.S. Mail and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., NW 12th Floor Washington, DC 20006 202-986-8477 Joseph S. Kieffer, 12I, Esq. Special Master-Monitor 420 7th Street, Apt 705 Washington, DC 20004 202-478-1958 Sean P. SchmergeI IN THE UNITED STATES DISTRICT COURT FOR THE DISTRiCT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) (Special Master-Monitor Defendants. ) Joseph S. Kieffer, III) ) NOTICE O.F. i DEPOSITION..-.THOMAS MAULSON TO: Mr. Dennis M. Gingold Mr. Keith Harper Mr. Mark Kester Brown Native American Rights Fund P.O. Box 14464 1712 N Street, NW Washington, D.C. 20044-4464 Washington, D.C. 20036-2976 Fax: 202/318-2372 Fax: 202/822-0068 PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30, the Secretary of the Interior and the Assistant Secretary - Indian Affairs shall conduct the oral deposition of Plaintiff THOMAS MAULSON, at the offices of Defendants' attorneys, U.S. Department of Justice, Civil Division, 1100 L Street NW, Washington, D.C., beginning at 10:00 a.m. on January 29, 2003, and, if necessary, shall continue thereafter on further dates to be scheduled, until completed. EXHIBIT 7 This Notice of Deposition requires the appearance of the above-named deponent for the entirety of the deposition. The deposition will be recorded by sound-and-visual and steno_aphic means. Respectfully sub mitred, ROBERT D. McCALLLrM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director Senior Trial Attorney DAVID J. GOTTESMAN Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Tel: (202) 5t4-7194 Dated: November _____._, 2002 -2- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on November 26, 2002, I sewed the foregoing Notice of Deposition - Thomas Mautson 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 Brown, Esq. 1712 N Street, NW I275 Pennsylvania Avenue, NW Washington, DC 20036-2976 Ninth Floor 202-822-0068 Washington, DC 20004 202-318-2372 and by U.S. Mail upon: % Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 and by U.S. MaiI and by facsimile upon: Alan L. Balaran, Esq. Special M_ter 1717 Permsylv_ia Ave., NW 12th Floor Washington, DC 20006 202-986-8477 Joseph S. Kieffer, iii, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 202-478-1958 IN THE UNITED STATES DISTRiCT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. I:96CV01285 (RCL) ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) MEMORANDUM IN SUPPORT OF INTERIOR DEFENDANTS' MOTION FOR ORDER (1) ADOPTING THOSE PORTIONS OF THE SPECIAL MASTER-MONITOR'S RECOMMENDATION REGARDING DEPOSITIONS OF NAMED PLAINTIFFS, AND (2) ORDERING NAMED PLAINTIFFS TO APPEAR AND TESTIFY AT DEPOSITIONS The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior Defendants" or "interior"), pursuant to Fed. R. Civ. P. ("Rule" or "Rules") 53(e)(2), submit the following memorandum in support of "Interior Defendants' Motion For Order (1) Adopting Those Portions Of The Special Master-Monitor's Recommendation Regarding Depositions Of Named Plainti frs, And (2) Ordering Named Plaintiffs To Appear And Testify And Testify At Depositions." DISCUSSION On November 18, 2002, Interior Defendants filed Notices of Appeal of the Court's September 17, 2002 Orders. On November 22, 2002, Plaintiffs' counsel sent a letter (.see Exhibit 4 attached to the accompanying Motion) refusing to propose deposition dates for the other named Plainti frs, and instead stating that Plaintiffs were evaluating whether the other named Plaintiffs would submit to depositions, in light of the Interior Defendants' having filed notices of appeal of certain orders. However, the filing of the notices of appeal provides no basis for any of the Plaintiffs to avoid being deposed. Although the filing of the notices of appeal operates to transfer to the court of appeals jurisdiction over the matters on appeal, the case otherwise remains within the jurisdiction of this Court. Griggs v. Provident Cpnsumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam) (the filing of a notice of appeal, including an interlocutory appeal, confers jurisdiction on the Court of Appeals only ".. · over those aspects of the case involved in the appeal % Interior Defendants' discovery is not a matter on appeal; therefore, Plaintiffs cannot rely upon the Notices of Appeal as a basis to avoid submitting to discovery. See Macon v. Bailar, 428 F_ Supp. 182 (ED. Va. 1977) (Plaintiffcould not avoid producing documents and district court had jurisdiction to compel discovery while appeal of interlocutory order narrowing plaintiff class was pending); see generally 6 Jeremy C. Moore et al., Moore's Federal Practice, §303.32 at 303-83-84 ("If an appeal is taken from a judgment that does not finally determine the entire action, the appeal does not prevent the district court from proceeding with matters not involved in the appeal.")· Plaintiffs' refusal to provide deposition dates despite Interior Defendants' repeated requests reveal an unwillingness to proceed with depositions expeditiously. CONCLUSION For the reasons set forth above, Interior Defendants request that the Court grant Interior -2- Defendant's Motion and order the named Plaintiffs to appear and testify at depositions on dates set by Interior Defendants. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director SANDRA P. kPO ONER' \ Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney TIMOTHY E. CURLEY Trial Attorney D.C. Bar No. 470450 Commercial Litigation Branch Civil Division United States Depamnent of Justice P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 307-0183 Dated: November 27, 2002 -3- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on November 27, 2002, I served the foregoing Interior Defendants 'Motion for Order (1) Adopting Those Portions of the Special Master-Monitor's Recommendation Regarding Depositions of Named PlaintifJ_, and (2) Ordering Named Plaintiffs to Appear and Testi)5_ at Depositions and Memorandum in Support of Interior Defendants 'Motion for Order (1) Adopting Those Portions of the Special Master-MonitoHs Recommendation Regarding Depositions of Named PlaintifJ_, and (2) Ordering Named Plaintiffs to Appear and TestlJ_ at Depositions 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 Brown, Esq. 1712 N Street, NW 1275 Pennsylvania Avenue, NW Washington, DC 20036-2976 Ninth Floor 202-822-0068 Washington, DC 20004 202-318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 and by U.S. Mail and by facsimile upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., NW 12th Floor Washington, DC 20006 202-986-8477 Joseph S. Kieffer, III, Esq. Special Master-Monitor 420 7th Street, NW Apt 705 Washington, DC 20004 202-478-1958 ..... f .: :,TT----' Sean P. Schmergel