IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ MOTION FOR A PROTECTIVE 
ORDER REGARDING PLAINTIFFS’ NOTICE OF 
DEPOSITION OF THE SECRETARY OF INTERIOR 
On November 4, 2003, without any prior communication to counsel for Defendants,1 
Plaintiffs noticed the deposition of the Secretary of the Interior for November 13, 2003 (“Notice 
of Deposition”) (attached as Exhibit 1). Plaintiffs are not permitted to depose the Secretary 
because they are not entitled to any discovery at this time. Even if discovery were appropriate 
now, Plaintiffs cannot show the requisite extraordinary circumstances that would justify the 
deposition of a Cabinet official. Plaintiffs cannot demonstrate how discovery of the Secretary 
would be permitted under the principles of review for cases where jurisdiction is based upon the 
Administrative Procedure Act. Finally, discovery from the Secretary would not be within the 
scope of permissible discovery under Fed. R. Civ. P. 26(b). Accordingly, pursuant to Fed. R. 
1/ In noticing the Secretary’s deposition without any prior communication regarding availability 
of the deponent or her counsel, Plaintiffs have ignored the Court’s admonition that counsel 
should confer regarding the scheduling of depositions. See Order of May 8, 1998; Transcript of 
November 6, 1998 Hearing at 2 (“I don't know what's happened to the notion that I was trying to 
set forth in May about civility, but I don't think that the plaintiff should have noticed those 
depositions without a discussion about dates with the defendants first”) (attached as Exhibit 2).
Civ. P. 26(c), Defendants move for a protective order preventing the noticed deposition of the 
Secretary.2 
ARGUMENT 
I. THE SECRETARY’S DEPOSITION SHOULD NOT BE PERMITTED BECAUSE 
NO DISCOVERY IS ALLOWED AT THIS TIME 
Plaintiffs are not authorized to take any discovery at this time. Fact discovery for the 
Phase 1.5 trial closed on March 28, 2003, the trial itself was concluded over three months ago 
and the Court ruled upon the issues raised therein on September 25, 2003. Plaintiffs have not 
sought leave of Court to take discovery out of time, and there is no indication in the Court's 
October 17, 2002 Phase 1.5 Trial Discovery Order that the Plaintiffs were authorized to conduct 
roving discovery after Trial 1.5. 
In addition, nothing in the structural injunction issued by the Court on September 25, 
2003, provides for further discovery. The Court's injunction establishes a series of deadlines 
through September 30, 2007, for the Department of Interior to perform specific tasks. Under the 
schedules established by the Court's September 25, 2003 orders, a Phase II trial is likely, and it is 
possible that there will be discovery associated with it. However, there is no discovery order 
setting a discovery schedule for a Phase II trial. 
Nor are there other proceedings before the Court requiring discovery. Even if the noticed 
deposition of the Secretary were purportedly related to some future proceeding in this case, the 
parties have not held a discovery planning conference pursuant to Federal Rule of Civil 
2/ As required by Fed. R. Civ. P. 26(c), and Local Rule 7(m), counsel for Defendants conferred 
with counsel for Plaintiffs on November 5, 2003 in an attempt to resolve this dispute without 
Court action. Plaintiffs expressed an intent to oppose the relief requested here. 
2
Procedure 26(f) and, therefore, Plaintiffs are not authorized to take discovery. Fed. R. Civ. P. 
26(d), 30(a)(2)(C) and 34(b). Because no discovery is permitted at this time, the Court should 
issue a protective order to prevent the noticed deposition of the Secretary. 
II. THE SECRETARY’S DEPOSITION SHOULD NOT BE PERMITTED BECAUSE 
HIGH-RANKING GOVERNMENT OFFICIALS CANNOT BE DEPOSED 
ABSENT EXTRAORDINARY CIRCUMSTANCES 
Even if discovery were appropriate at this time, Plaintiffs would not be permitted to take 
the deposition of the Secretary of Interior. As the D.C. Circuit has made clear, “top executive 
department officials should not, absent extraordinary circumstances, be called to testify regarding 
their reasons for taking official actions.” Simplex Time-Recorder Co. v. Secretary of Labor, 766 
F.2d 575, 586 (D.C. Cir. 1985) (citing United States v. Morgan, 313 U.S. 409, 422 (1941)); see 
also In re United States, 197 F.3d 310, 313-14 (8th Cir. 1999) (same); In re United States, 985 
F.2d 510, 512 (11th Cir. 1993) (per curiam) (“the practice of calling high officials as witnesses 
should be discouraged”); In re Office of Inspector Gen., 933 F.2d 276, 278 (5th Cir. 1991) 
(“exceptional circumstances must exist before the involuntary depositions of high agency 
officials are permitted”). 
The primary basis for this rule was explained in Capitol Vending Co. v. Baker, 36 F.R.D. 
45, 46 (D.D.C. 1964): 
If the head of a government agency were subject to having his deposition taken 
concerning any litigation affecting his agency or any litigation between private parties 
which may indirectly involve some activity of the agency, we would find that the heads of 
government departments and members of the President’s Cabinet would be spending their 
time giving depositions and would have no opportunity to perform their functions. 
See also Community Fed. Sav. & Loan v. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621 
(D.D.C. 1983) (“Considering the volume of litigation to which the government is a party, a 
3
failure to place reasonable limits upon private litigants’ access to responsible governmental 
officials as sources of routine pre-trial discovery would result in a severe disruption of the 
government’s primary function”). 
The Court has applied this rule previously in this case. In a March 25, 1999 Order, the 
Court ruled that before Plaintiffs could take the depositions of high government officials they 
“shall be required to provide evidence demonstrating and proving: (A) that Plaintiffs have an 
extraordinary need for these particular depositions; and (B) that the precise information they seek 
from these individuals is available from no other source.” March 25, 1999 Order Granting 
Consolidated Motion for Protective Order at 1-2. 
Plaintiffs cannot make the requisite showing of extraordinary need here. At the meet and 
confer discussion initiated by Defendants’ counsel on November 5, 2003, Plaintiffs’ counsel 
refused to identify the precise subject areas that they would cover during a deposition of the 
Secretary.3 They claimed the right to explore all “relevant” information. They would only reveal 
that, among other things, they want to find out the Secretary’s actual knowledge regarding 
compliance with the Court’s orders in this case, including compliance with the September 25, 
2003 structural injunction. 
Plaintiffs’ desire to appoint themselves as roving investigators monitoring compliance 
with this Court’s orders does not qualify for the exceptional circumstances permitting a 
deposition of the Secretary of Interior. As the Eighth Circuit has explained, “[a]llegations that a 
high government official acted improperly are insufficient to justify the subpoena of that official 
3/ The refusal to provide information concerning the need for issues that may be explored during 
a Cabinet official’s deposition is sufficient cause to issue a protective order. See United States v. 
Northside Realty Assocs., 324 F. Supp. 287, 295 (N.D. Ga. 1971). 
4
unless the party seeking discovery provides compelling evidence of improper behavior and can 
show that he is entitled to relief as a result.” In re United States, 197 F.3d at 314. “[A]t a 
minimum,” Plaintiffs must demonstrate that the witness sought to be deposed would “possess 
information essential to [Plaintiffs’] case which is not obtainable from another source.” Id.; see 
also Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C. 1998). Because there are no current proceedings 
for which discovery is needed, Plaintiffs cannot demonstrate that any information is relevant to 
their case, let alone “essential.” Moreover, Plaintiffs cannot show that any information they 
would seek to elicit from the Secretary could not be obtained through other means. See Simplex, 
766 F.2d at 587. 
III. THE SECRETARY’S DEPOSITION IS NOT PROPER UNDER APA 
PRINCIPLES 
Plaintiffs’ attempted discovery is also improper under applicable APA principles. 
Because Plaintiffs’ claims for declaratory and injunctive relief for an accounting are allowed 
pursuant to the waiver of sovereign immunity provided in Section 702 of the APA and the 
jurisdiction of this Court is derived from the APA, discovery should proceed in a way that is 
consistent with APA review principles. See Cobell v. Norton, 240 F.3d 1081, 1094-95 (D.C. Cir. 
2001). Under the APA, judicial review must await final agency action. Id. at 1095; Cobell v. 
Babbitt, 91 F. Supp. 2d 1, 35-36 (D.D.C. 1999); see also Bennett v. Spear, 520 U.S. 154, 177-78 
(1997). Final agency action in this matter on the accountings that will presumably be the subject 
of Phase II litigation has not occurred, and is not scheduled to occur under the Court’s September 
25, 2003 structural injunction until 2007. 
5
While it is premature to speculate about whether discovery would be appropriate prior to 
Phase II, and if so, how extensive discovery should be, the normal procedure is to look at any 
administrative record submitted by the agency and where that record is deemed inadequate to 
remand to the agency for further explanation. See Florida Power & Light Co. v. Lorion, 470 U.S. 
729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138, 142-43 (1973); Citizens To Preserve Overton 
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). In any event, before such final agency action has 
been rendered there is no basis for discovery directed at Phase II issues. 
In cases such as this, a party seeking extra-record discovery has the burden of showing 
why such discovery and review are necessary. See Commercial Drapery Contractors, Inc. v. 
United States, 133 F.3d 1, 7 (D.C. Cir. 1998); Northcoast Envtl. Center v. Glickman, 136 F.3d 
660, 665 (9th Cir. 1998); Animal Defense Council v. Hodel, 840 F.2d 1432, 1436, 1438 (9th Cir. 
1988), modified in part, 867 F.2d 1244 (1989); Balaton. Inc. v. Reno, 93 F. Supp. 2d 61, 62 
(D.D.C. 2000); Simpkins v. Shalala, 999 F. Supp. 106, 110 (D.D.C. 1998); Conference of State 
Bank Sup'rs v. Office of Thrift Supervision, 792 F. Supp. 837, 842 (D.D.C. 1992); Marine 
Transp. Services Sea-Barge Group, Inc. v. Busey, 786 F. Supp. 21, 27 (D.D.C. 1992). Plaintiffs 
have not met, and cannot meet, this burden, especially when they refuse even to identify the 
information that they seek to elicit in a deposition of the Secretary. 
Permitting Plaintiffs to take the depositions of the Secretary here would also be 
inappropriate to the extent that Plaintiffs seek to probe the minds of the decisionmaker or those 
advising her. As the Court stated in Overton Park, 401 U.S. at 420 (citing United States v. 
Morgan, 313 U.S. at 422), "inquiry into the mental processes of administrative decisionmakers is 
usually to be avoided." This form of prying into the government decision-making process has 
6
been compared to cross examination of judges on their decisions. Morgan, 313 U.S. at 422 
("Just as a judge cannot be subjected to such a scrutiny . . . so the integrity of the administrative 
process must be equally respected").4 
The APA also limits the scope of permissible discovery with regard to monitoring 
compliance with the Court’s orders. Under the APA, an agency in the midst of completing 
required tasks should generally be allowed to do so without the interference of constant 
discovery.5 See Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 79 (D.C. 
Cir. 1984) ("Postponing review until relevant agency proceedings have been concluded permits 
an administrative agency to develop a factual record, to apply its expertise to that record, and to 
avoid piecemeal appeals") (inner quotation omitted). 
As discussed above, the Court’s September 25, 2003 structural injunction does not 
authorize Plaintiffs to conduct discovery into compliance with the injunction. Indeed, the Court 
has retained jurisdiction to monitor compliance. See Cobell v. Norton, No. 96-1285, 2003 WL 
22211405, **213-14 (D.D.C. Sep. 25, 2003). 
4/ The deposition of any government official about the decisionmaking process itself encroaches 
upon the deliberative process privilege. Because Plaintiffs are evasive about their actual 
intentions in seeking a deposition of the Secretary, Defendants are unable to assert particularized 
privileges at this point. The likelihood that Plaintiffs’ discovery will generate yet another round 
of discovery disputes over the deliberative process and other privileges counsels a strict 
adherence to the limits on discovery imposed by the APA. 
5/ Plaintiffs have noticed 15 depositions and propounded 13 sets of requests for production of 
documents since the Phase 1.5 trial ended. 
7
IV. DISCOVERY FROM THE SECRETARY IS NOT WITHIN THE SCOPE OF 
PERMISSIBLE DISCOVERY UNDER RULE 26 
Even if discovery were otherwise permissible, Plaintiffs cannot show that the discovery 
sought from the Secretary would be within the scope of the Federal Rules. Under Rule 26(b)(1), 
parties may only obtain discovery regarding matters that are “relevant to the claim or defense of 
any party . . . .” Fed. R. Civ. P. 26(b)(1). Although information need not be admissible at trial to 
be discoverable, it still must be “[r]elevant” information and must be “reasonably calculated to 
lead to the discovery of admissible evidence.” Id. 
Plaintiffs’ refusal to describe the information sought from the Secretary makes it difficult 
for the Court, and Defendants, to assess claims of relevance. As discussed above, however, 
Defendants are unaware of any discoverable information at this time that would be relevant and 
reasonably calculated to lead to the discovery of admissible evidence. A deposition of the 
Secretary could thus necessarily only cover topics outside the scope of permissible discovery. As 
such, a protective order is needed to prevent the deposition. 
8
CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: November 10, 2003 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ John T. Stemplewicz 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
9
CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on November 10, 2003 I served the foregoing Defendants’ 
Motion for a Protective Order Regarding Plaintiffs’ Notice of Deposition of the Secretary of Interior was 
served by Electronic Case Filing, and on the following who are not registered for Electronic Case Filing 
in the manner indicated: 
Per the Court’s Order of April 17, 2003, 
by Facsimile 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston 
10
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 al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Interior Defendants’ Motion for a Protective Order 
Regarding Plaintiffs’ Notice of Deposition of the Secretary of the Interior. Upon consideration of 
the Motion, the responses thereto, and the record in this case, it is hereby 
ORDERED that Interior Defendants’ Motion for a Protective Order is GRANTED; it is 
further 
ORDERED that Plaintiffs are precluded from deposing Secretary Norton at this time. 
SO ORDERED. 
Date: _________ 
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 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530