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 LUCY QUERQUES DENETT 
On November 6, 2003, without any prior communication to counsel for Defendants,1 
Plaintiffs noticed the deposition of Lucy Querques Denett, Associate Director for Minerals 
Revenue Management, Minerals Management Service, Department of the Interior, for November 
19, 2003 (“Notice of Deposition”) (attached as Exhibit 1). Plaintiffs are not permitted to depose 
Ms. Querques Denett because they are not entitled to any discovery at this time. Moreover, the 
lack of any proceedings makes it impossible to determine whether discovery from Ms. Querques 
Denett would be within the scope of permissible discovery under Fed. R. Civ. P. 26(b). 
1/ In noticing Ms. Querques Denett’s deposition without any prior communication regarding 
availability of the deponent or his 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). Plaintiffs similarly failed to heed the Court’s admonition and, without prior 
communication with government counsel, have issued deposition notices for Secretary Norton, 
Associate Deputy Secretary James Cason, Michael Carr, Anson Baker, Deborah Gibbs Tschudy, 
Lonnie Kimball, Donna Erwin, David Bernhardt, Bert Edwards, Elouise Chicharello and Gabriel 
Sneezy.
Accordingly, pursuant to Fed. R. Civ. P. 26(c), Defendants move for a protective order 
preventing the noticed deposition of Ms. Querques Denett.2 
ARGUMENT 
NO DISCOVERY IS PERMITTED AT THIS TIME I. 
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.3 However, there is no discovery order 
setting a discovery schedule for a Phase II trial. 
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 13, 2003 in an attempt to resolve this dispute without 
Court action. Plaintiffs expressed an intent to oppose the relief requested here. 
3/ Defendants note and reassert their continuing objection to discovery on the ground that such 
discovery is improper in an APA case. For that purpose, we incorporate by reference the 
arguments set forth in Defendants’ Motion for Protective Order Regarding Plaintiffs’ Notice of 
Deposition of the Secretary of Interior at pages 5-7 (November 10, 2003). 
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Nor are there other proceedings before the Court requiring discovery. Even if the noticed 
deposition of Ms. Querques Denett 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 
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 Ms. Querques Denett. 
II. DISCOVERY FROM MS. QUERQUES DENETT AT THIS TIME CANNOT BE 
REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF 
ADMISSIBLE EVIDENCE 
Since the scope of any future proceedings in this litigation remains undefined, it is 
impossible to determine, and Plaintiffs cannot show, that the discovery sought from Ms. 
Querques Denett 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. 
The absence of any proceeding scheduled at this time containing triable issues of fact 
renders the determination of what would be "reasonably calculated to lead to the discovery of 
admissible evidence" premature, if not impossible. Under the circumstances, Plaintiffs' attempts 
to take discovery at this time amount to a roving fishing expedition with no discernible bounds. 
Indeed, during the meet and confer discussion initiated by Defendants’ counsel on November 13, 
2003, Plaintiffs' counsel indicated that Ms. Querques Denett's deposition would not necessarily 
be limited to any particular issue but claimed the right to take discovery at this time on any issues 
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that Plaintiffs consider related to "institutional reform" or an accounting.4 A roving 
investigation, untethered to any proceeding for the adjudication claims and defenses, is not 
permissible discovery under Rule 26.5 
Moreover, the Defendants have filed a Notice of Appeal of the September 25, 2003 
structural injunction, and the Court of Appeals issued an administrative stay of that injunction on 
November 12, 2003. Plaintiffs, therefore, have no basis for seeking to inquire about what 
Defendants are presently doing to comply with the structural injunction. As such, a protective 
order is needed to prevent the deposition. Fed. R. Civ. P. 26(c) (protective order appropriate "to 
protect a party or person from annoyance, . . . oppression, or undue burden or expense."). 
4/ During the meet and confer, Plaintiffs' counsel identified as one potential area of inquiry a 
November 5, 2003 press report regarding the results of a Minerals Management Service 
("MMS") audit resulting in the recovery of underpayments of oil and gas royalties for tribal and 
allotted interests; Ms. Querques Denett was quoted in the press report. However, a press release 
concerning MMS' activities does not create any discovery rights that do not otherwise exist. 
Plaintiffs have not sought leave of court to take such discovery and, for the reasons stated above, 
Plaintiffs do not otherwise have the right to take discovery at this time. 
5/ To the extent Plaintiffs have propounded this discovery for the purpose of investigating 
potential criminal contempt allegations, this Court's decision in Landmark Legal Foundation v. 
EPA, 272 F.Supp.2d 70, 76-77 (D.D.C. 2003), makes clear that the Plaintiffs cannot assume a 
prosecutorial role. See also Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 
814 (1987) (reversible error to appoint the attorney for an interested private beneficiary as 
prosecutor of contempt allegations). 
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CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: November 17, 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 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
/S/ Timothy E. Curley 
_____________________________________ 
TIMOTHY E. CURLEY 
D. C. Bar No. 470450 
Trial Attorney 
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 hereby certify that, on November 17, 2003 the foregoing Defendants’ Motion for a 
Protective Order Regarding Plaintiffs’ Notice of Deposition of Lucy Querques Denett 
was served by Electronic Case Filing, and on the following who is not registered for Electronic 
Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston 
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