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., ) 
Defendants. 
) 
) 
__________________________________________ ) 
DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER WITH REGARD TO 
PLAINTIFFS’ NOTICE OF DEPOSITION DIRECTED TO BERT T. EDWARDS 
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Defendants respectfully 
move this Court for a protective order preventing Plaintiffs from taking the deposition of Mr. 
Bert T. Edwards pursuant to their deposition notice dated November 5, 2003, a copy of which is 
attached hereto as Exhibit 1.1 Defendants are entitled to protection because Plaintiffs lack any 
authority to depose Mr. Edwards or to conduct document inspections at this time. Further, even 
if some discovery were permitted now, Plaintiffs cannot demonstrate that the discovery described 
1 Plaintiffs’ deposition notice regarding Mr. Edwards was served upon Defendants’ 
counsel on or about November 5, 2003, without any prior communication to government 
counsel. By serving this deposition notice without attempting to confer with Defendants’ 
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). Moreover, Plaintiffs 
have similarly disregarded 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, Elouise Chicharello, Lucy Querques Denett, and Gabriel Sneezy. 
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in Plaintiffs’ deposition notice is permitted under the principles of review for cases where 
jurisdiction is based upon the Administrative Procedure Act.2 Finally, the discovery described in 
Plaintiffs’ deposition notice is beyond the scope of permissible discovery under Rule 26(b) of the 
Federal Rules of Civil Procedure. Accordingly, pursuant to Rule 26(c), Defendants move for a 
protective order.3 
ARGUMENT 
I. PLAINTIFFS SHOULD NOT BE PERMITTED TO DEPOSE MR. EDWARDS 
BECAUSE NO DISCOVERY IS CURRENTLY AUTHORIZED IN THIS CASE 
At this stage of the litigation, Plaintiffs are neither authorized by the Court nor in need of 
the ability to conduct discovery. Discovery for the Phase 1.5 trial was completed in April 2003; 
the Phase 1.5 trial concluded in July 2003; and this Court issued its Phase 1.5 rulings, which 
included its structural injunction, on September 25, 2003. 
The Court's discovery order for the Phase 1.5 trial provided for the conduct of fact 
discovery beginning October 7, 2002, and concluding March 24, 2003,4 and for the conduct of 
expert depositions from March 7, 2003, until April 10, 2003. Phase 1.5 Trial Discovery 
Schedule Order (filed Oct. 17, 2002). This discovery order did not authorize Plaintiffs to 
2 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 a Protective Order Regarding Plaintiffs’ 
Notice of Deposition of the Secretary of Interior, pages 5-7 (filed Nov. 10, 2003). 
3 Pursuant to Rule 26(c) and Local Civil Rule 7(m), counsel for Defendants 
conferred with counsel for Plaintiffs on November 5, 2003 in an attempt to resolve this and other 
discovery disputes, without the need for judicial intervention. Plaintiffs’ counsel stated that they 
would oppose this motion. 
4 This deadline subsequently was extended by the Special Master-Monitor until 
March 28, 2003. 
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conduct any discovery after April 10, 2003, and, Plaintiffs have not sought leave of Court to 
conduct any of their roving discovery out of time. Of course, if Plaintiffs were to file such a 
request, it plainly would lack merit because the Court has already issued its September 25, 2003 
rulings following the conclusion of the Phase 1.5 trial. 
Moreover, the Court’s structural injunction and other September 25, 2003 rulings do not 
authorize further discovery by Plaintiffs. In particular, the Court’s structural injunction describes 
a series of deadlines, which extend through September 30, 2007, for the Department of the 
Interior to perform specific tasks. The Court’s September 25, 2003 rulings ultimately may result 
in a “Phase 2” trial, and if that ultimately is scheduled, it is possible that discovery will be 
authorized for that proceeding. At the present time, however, there is no discovery order in place 
for a Phase 2 trial, nor should there be such an order, inasmuch as the trial would be years in the 
future under the structural injunction’s timetable. 
Finally, there are no other proceedings before the Court requiring discovery. Even if 
Plaintiffs’ deposition notice were purportedly related to some future proceeding in this case,5 the 
parties have not held a discovery planning conference pursuant to Rule 26(f) of the Federal Rules 
of Civil Procedure. Thus, Plaintiffs are not authorized to conduct any discovery at this time. 
Fed. R. Civ. P. 26(d), 30(a)(2)(C), and 34(b). 
II. PLAINTIFFS’ DEPOSITION NOTICE IS BEYOND THE SCOPE OF 
PERMISSIBLE DISCOVERY 
The Federal Rules of Civil Procedure establish scope limitations on discovery. In 
5 During the meet-and-confer conference on November 5, 2003, referenced in 
footnote 3, above, Plaintiffs’ counsel declined to articulate any specific reasons for any of the 
discovery sought in Plaintiffs’ deposition notice. 
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particular, 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). Moreover, although information need not be 
admissible at trial to be discoverable, the information sought must be relevant, and the discovery 
requests must be “reasonably calculated to lead to the discovery of admissible evidence.” Id. 
During the course of the meet-and-confer conference initiated by Defendants’ counsel on 
November 5, 2003, see note 3, above, Plaintiffs’ counsel repeatedly refused to identify any of the 
subject areas they would cover in the course of their wide-ranging discovery plans, including the 
deposition noticed for Mr. Edwards. Simply put, Plaintiffs’ refusal to describe the information 
sought from Mr. Edwards makes it impossible for the Court and Defendants to assess claims of 
relevance or to consider whether the deposition would be reasonably calculated to lead to the 
discovery of admissible evidence.6 
Finally, as the Court is aware, the Defendants filed a Notice of Appeal with regard to 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 warranted 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.”). 
Conclusion 
For the foregoing reasons, we respectfully request that the Court issue a protective order, 
6 Insofar as no trial or other hearings are currently scheduled, the context for 
assessing admissibility is not even apparent. 
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pursuant to Rule 26(c), preventing Plaintiffs from taking the deposition of Mr. Bert T. Edwards. 
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 
Director 
/s/ John Warshawsky 
SANDRA P. SPOONER 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
JOHN WARSHAWSKY (D.C. Bar No. 417170) 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Telephone: (202) 514-7194 
November 25, 2003 
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CERTIFICATE OF SERVICE 
I hereby certify that, on November 25, 2003 the foregoing Defendants’ Response to 
Plaintiffs’ Tenth Request for Production of Documents, Dated October 21, 2003 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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