· . · · ..... rN ThE t iZED STATES DISTraCT COURT FOR THE DISTRICT OF COLUMBIA .... _ .,.' :_ :_i :;: ,.:...': ELOUiSE PEPION COBELL, et al., ) CL [:7_i'; ) Plaintiffs, ) ) v. ) Case No. I:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the ) Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS' MOTION FOR A PROTECTIVE ORDER AS TO DISCOVERY BY THE SPECIAL MASTER-MONITOR AND AS TO THE RULE ANNOUNCED BY THE SPECIAL MASTER-MONITOR CONCERNJ. N,G ·DEPOSITION @UESTIONING The Secretary of the Interior and the Assistant Secretary-Indian Affairs (the "Interior Defendants") hereby move this Court, pursuant to Federal Rule of Civil Procedure 26(c), for an order that (1) discovery by the Special Master-Monitor to the Interior Defendants not be had; and (2) that the Special Master-Monitor not attempt to make dispositivc substantive rulings at depositions and compel witnesses, under threat of potential disciplinary' action against their counsel, to answer questions over the objections and instruction of their counsel. As set forth in the accompanying Memorandum of Points and Authorities, the discovery' sought by the Special Master-Monitor is oppressive and unduly I>urdcnsomc, ami his attempt to issue snbstantivc rulings ot_ discovery disputes, rather than to submit thcn_ to thc Court as t'cquircd, is bcyoml his authority and [mpro[.¢cr. Accordingly, thc [merior Dcfclldants reclucst that thc Court enter thc proposed order attached hereto, granriIng thc relict' stated above, and such other and t'urther relief' to which tine interior Defendants may be entitled. Counsel for the Interior Defendants hereby certify, pursuant to the Local Rules of the District Court and Federal Rute of Civil Procedure 26(c), that they have conferred with plaintiffs' counsel, who state that they oppose this motion. Dated: January 23, 2003 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director ___<_'_ _x..--._....__ 'SAN-_DRA p. sPOONER-'-_ Deputy Director DC Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Attorney CommcrciaI Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 5t4-7194 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRiCT OF COLUMBIA ELOUISE PEP[ON COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the ) Interior, et al., ) ) Defendants. ) ) PROTECTIVE ORDER AS TO DISCOVERY BY THE SPECIAL MASTER-MONITOR AND AS TO THE RULE ANNOUNCED BY THE SPECIAL MASTER-MO._.]TOR CONCERNIN. G DEPOSITION...QUESTIONING This matter coming before the Court on the motion of defendants the Secretary of the Inter[or and the Assistant Secretary-Indian Affairs (the "interior Defendants"), and any responses thereto, the Court finds that the motion should be GRANTED, IT iS THEREFORE ORDERED THAT the Interior Defendants need not respond to any discovery requests propourtded by tile Special Master-Monitor and presently pending, and that the Special Master-Monitor shall not propound an 3, further discovery on the Interior Det_ndants; FURTHER ORDERED that any dispute concerning an instruction from counsel to a wimess it represents that the witness not answer a question during an examination by deposition shall be submitted to the Court for resolution, and that the Special Master-Monitor shall not seek during the dcposi[ion to compel sttci_ witness to ap, s_x er the qt_cstion [o xx hiclt Iht ob icctien x_ ;_s ;tsscrtcd, or threaten counsel making thc objection or the witness with potcndaI disciplinary or oth,er adverse action. SO ORDERED this _ day of ,2003. ROYCE C. LAMBERTH United States District Judge cc: Sandra P. Spooner John T. Stemplewicz Cynthia L. Alexander 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 (2O2) 318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. I t00 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Joseph S. KiefFer, III Special Master-Monitor 420 - 7 *t' Street, N.W. .-\)>f_rlr_lenl 705 \-\'ztshitlgtt)n, D.C. 20004 IN THE UNITED STATES DISTRiCT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. I:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the ) Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE ORDER AS TO DISCOVERY BY THE SPECIAL MASTER-MONITOR AND AS IO THE RULE ANNOUNCED BY THE SPECIAL MASTE. R-MON!TOR CONCERNING DEPOSITION OUESTIONINC! The Secretary of thc h-tterior and the Assistant Secretary-Indian Affairs (the "Interior Defendants") hereby submit this Memorandum of Points and Authorities in support of their motion, pursLtant to Federal Rule of'Civil Procedure 26(c), For a protective order that (I) relieves them of any obligation to respond to discovery propounded by the Special Master-Monitor, Joseph S. Kiel[er, Iii; and (2) proscribes the Special Master-Monitor t?om implementing a rule he has armounced that would enable him to make dispositive substantive rulings at depositions and to compel witnesses, under threat of potential disciplinary action against their counsel, to answer questions over tile objections and inst[_ction o[thciF cotmscI. :Ks is discussed in dctait t_elox_, it is oppFcssive and tn-_dtt{v bt_rdcnsome tbr the Interior DeFendants to bc rcqui_-cd to respond to discovery requests fi-om thc Special Master- Monitor because ( 1 ) the Special Nlaster-.:X. lortitor is making the Court a defitcto litigant in the case, independently creating its own record concerning issues that the Court has said it will adjudicate at trial; (2) the Special Master-Monitor's pursuit of evidence by propounding his own discovery demands conflicts with his responsibility to oversee discovery; and (3) it is unnecessary and tmreasonable for the Interior Defendants to be required to respond to discovery demands from both the Plaintiffs and the SpeciaI Master-Monitor concerning the same general subject matter. The Special Master-Monitor's efforts to issue substantive rulings on discovery disputes arising during depositions, rather than submit such issues to the Court for resolution, is beyond his authority and wholly improper. For these reasons, the Court should issue an order that discover), by the Special Master-Monitor not be had, and that any discovery disputes arising during depositions, including those relating to objections and instructions not to answer, be submitted to the Court ibr resolution. BACKGRO UND A. The Appointmen. t Of The Special Mas. ter-Monito£ The Court appointed the Special Master-Monitor by Order dated September 17, 2002 (the "Appointlnent Order"). _ The Appointment Order grants the Special Master-Monitor the atttlnority to, inter alia: t The Special Master-Monitor was initially appointed as a Court Monitor on April 16, 2001, for a tenu o[at least t)nc )'ear. On April 15, 2002. aIier soliciting tlxe parties' comments ntqd suggcstiol_$, the Ct>m-t extended this tcnu ._ts "Com't 3_lonito_" 2_r t_nc )'car. Thc interior Dctbndants did not consent to the reappointmcnt ruder the tot'ms cst[zt)iishcd by thc Court. See Interior Dctbnqktnts' Rcspot_se to Cocf_t et'deL- Dated April 0, 2002 Ree:n-dinz Court Nlonitor (l]Icd Apr, I [, '_ > addition, Interior Dclk_ztdants have :q)t)catlcd thc Appoirnnacnt el'cid'. Sec Brier' tbr thc Appellamts (iSled Dec. 6, 2002). ,3 · regulate ali proceedings in every hearing before the master-monitor and to do ail acts and take all measures necessary or proper for the efficient performance of the master- monitor's duties; 2 · monitor the status of trust reform and the Interior defendants' efforts as they relate to the duties declared by the Court and prescribed in the 1994 Act; and - oversee the discovery process in this case and administer document production -- except insofar as the issues raised by the parties relate to IT security, records preservation and retention, the Department of the Treasury, and Paragraph 19 documents -- to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court. The Special Master- Monitor shall file with the Court, with copies to defendants' and plaintiffs' counsel, his report and recomtnendation as to any discovery dispute that arises which cannot be resolved by the parties. Appointment Order at _I_/3, 4, 8. The Appointment Order includes no specific provision for discovery to be taken by the Special Master-Monitor. B. Discovery. Requests..!ssued By The Sp..e. cial Maste. r-Monito[ The Special Master-Monitor has actively participated in the discovery process in this case from the inception of his involvement. As Court Monitor, he issued document requests for 42 categories of documents from the Interior Defendants. See Letter from Joseph S. Kieffer, Iit to Sandra P. Spooner (May 10, 2002) (requesting production of 25 categories of documents relating to the, Office of Historical Trust Accounting) (a true copy of which is attached hereto as Exhibit A); Letter from Joseph S. Kieffer, III to Sandra P. Spooner (May 22, 2002) (requesting production of 17 categories of 2 In addition to the power to regulate proceedings beIk)re them, masters have the aulhot-ity ttndcr Federal Rule et'Civil [q'ocedl, re 53(c) to, inter :tIi_l, cx_tminc winlcsscs and paFtics ulid,:l' oz._th and "Fcquit-e thc ]*t't)cttictioll bclk_Fc thc nlz_srcr oi'cvidcncc upc)n zt[I inz_ttcz's cnnbraced in the rciL-'rcnce, including the pFOdLIction el'all books, papers, voclchers, doctmncnts, zliltl writings _q)l)licz_bic thereto," A master's poxscrs z_rc generally subject to specification and lizxait;_tion by thc order oF ret_-irence. See itl. documents relating to the Office of the Special Trustee) (a true copy of which is attached hereto as Exhibit B)? The Special Master-Monitor has continued to issue document requests since assuming his present role, notwithstanding that the Appointment Order contemplates oversight and administrative discovery roles for the Special Master-Monitor. On December 22, 2002, the Special Master-Monitor requested the production, by December 31, 2002, of certain documents relating to judgment accounts identified by Bert Edwards, the Executive Director of the Office of Historical Trust Accounting COHTA"), during his December 18, 2002 deposition, as ',,,'ell as "any other correspondence between [former Special Trustee for American Indian Affairs] Mr. Slonaker and his staffand Mr. Edwards and his staff regarding the judgment accounts and the OHTA's personnel's [sic] request for the Special Trustee's opinion or comments about the judgment accounts' qualification as an historical accounting." Letter from Joseph S. Kieffer, ItI to Sandra P. Spooner (Dec. 22, 2002) (a true copy of which is attached hereto as Exhibit D). On December 3 I, 2002, the Interior Defendants produced the documents that were specifically identii'ied ir_ the Special Master-Monitor's request, and informed him that they were in the process of ascertaining whether the Department of the Interior had any other documents that fie[[ within the scope of hfs December 22, 2002 request. Letter front Sandra P. Spooner to Joseph S. Kieffer, III (Dec. 3 l, 2002) (a true copy of which is attached hereto as Exhibit Thc Special N Ia.stcr-.Munitor ultimately witlxlrcw those requests ai:ter acl,:nowlcdging that thc s_bject discovery v, ot;ld "most iii. authority over the Torts Branch, 6 provided the Special Master-Monitor with a lengthy description of the procedures that the United States must follow in addressing requests for Federally funded private representation, and also included a copy of the standard retention agreement required to be signed by indNiduals seeking Federal reimbursement for legal services. See Letter from Jeffrey S. Bucholtz to Joseph S. Kieffer, 1[!I (Jan. 10, 2003), attaching "Conditions of Private Counsel Retention by the Department of Justice for Representation of Current and Former Federal Employees" (a true copy of which is attached hereto as Exhibit Q). Mr. Bucholtz made clear that those procedures were followed to the letter, and left no question that decisions by the Torts Branch concerning Mr. Slonaker's entitlement to Government-funded representation are made without regard to any potential impact on this case. Id. (describing the private counsel program of the Torts Branch and the governing regulations, and explaining the Branch's decision as to Mr. Slonaker% request). Among other things, Mr. Bucholtz explained that the courts have clearly recognized that Justice Department decisions regarding personal representation are not reviewable. Ici. at 2 (citing Falkowski v..Equal Emp.Ioyment Opportt. mity Commission, 764 F.2d 907, 9I 1 (D.C. Cir.) (Justice Department's "decision not to pro:_'ide [plaintiff] with counsel was within thc agency's unreviewablc discretion."), cert. denied, 478 U.S. 1014 (1986)). Mr. BuchoItz also offered to respond to any additional questions the Special Master-Monitor had. By letter dated January 15, 2003, the Special Master-Monitor posed additional questions to the Dcpttty Assistant ),tton_ey Genera theft suggcs[ed Inis view th:ii' thc process by which questions _' The Torts Branch h:ts authority over requests lbr i:tdividuat-capacity repr'esent,'ltion at Fedcral expense. 9 relating to Mr. Slonaker's representation are resolved may be tainted by Mr. Slonaker's potentially adverse testimony. Letter from Joseph S. Kieffer, Iii to Jeffrey S. Bucholtz (Jan. 15, 2003) (a true copy of which is attached hereto as Exhibit R) at 2-3 ("If the interests of the United States - conceivably the Interior and Justice Departments - are not consistent with Mr. Slonaker's, it would appear that it would not be in the interests of the Attorney General to provide him representation if his testimony at future proceedings might not be positive regarding his knowledge of the Department of Interior's trust reform activities."), tn connection therewith, the Special Master-Monitor requested information on how the Deputy Assistant Attorney General planned to address this "apparent conflict." Id. at 3. On January 23, 2003, Mr. Bucholtz responded to the additional questions submitted by the Special Master-Monitor, and also reiterated that, to the extent the Special Master-Monitor planned "to review the propriety of the Justice Department's decision to deny Thomas Slonaker's request for reimbursement of private counsel fees relating to his testimony before Congress... the D.C. Circuit has held that decisions to deny representation under 28 C.F,R. _i',F 50.15 and. I6 are committed to the Attorney General's discretion and are not reviewable." Letter from JeflYey S. Bucholtz to Joseph S. KiefYer, [1t (Jan. 23, 2003) (a true copy of which is attached hereto as Exhibit S) (citing Falkowsk[). C. The Rule Announced By The Special Master-Monitor To Compe. 1 The Testimony Of Interior Wit..nesses By letter dated January 2, 2003, the Special Master-Monitor informed the parties of; new rule hc was establishing, ctmccrnillg -dope.sit/un questioning, '? Sec Letter fi'om ,[oscph S. KicI'l_l', 111 to Tcrrie N1. Petrie, :XIichztel QuintL John Stcmplc_vic× and Kcith Harpcm-(.lan. 2.20{)3) (a truc copy el! which is attached hereto as Exhibit T). Spccit'ically, after notina fi_at during a recent depositioa, counsel [0 for the Interior Defendants objected to a question and instructed the witness not to answer, notwithstanding the fact that the Special Master-Monitor viewed the question as proper, Mr. Kieffer announced that counsel for the Interior Defendants would face severe consequences if they asserted a similar position in any future deposition: Therefore, in future depositions, should counsel refuse to abide by my direction on discovery disputes that are unquestionably within my authority to resolve as granted to me by the Court in its September 17, 2002 Order, including but not limited to thc regulation of deposition questioning, consideration will be given to terminating the deposition and fiiing a Report and Recommendation to the Court recommending an Order to Show Cause be issued requiring counsel to answer why his or her conduct should not be referred to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action pursuant to Rule 8.4(d) of the District of Columbia Rules of Professional Conduct and why his or her conduct does not warrant personal monetary sanctions pursuant to Federal Rule of Civii Procedure 37(A)(4) [sic]. Id. at 3. In his letter, the Special Master-Monitor did not explain the basis for the purported authority he was now elatmmg, other than to quote the provisions in the Appointment Order that grant him the power to re=mare all proceedings in every hearing betbre the master-monitor" and to %versee the discovery process" in thc litigation. Sec id. at l, 3. The Special Master-Monitor also did not proffer any explanation as to how his assertion that such "discovery disputes.., are unquestionably within my authority to resolve as granted to me by the Court in its September 17, 2002 Order," see id. at 3, could be reconciled with the Court's express direction that he "file with the Court, with copies to dclbndants' and plaintifl_' counsel, his report and recommendation as to any discovery dispute that a,iscs which cannot Dc resolx cd by tl_c pa,'tics." Appoin_._ncnl O,'dcr at '.i 8 (crnphasis _tddcd). Il DISCUSSION I. Relevant Legal Standard Federal Rule of Civil Procedure 26(c) provides that, for good cause shown, a court may issue an order to protect a party from whom discovery is sought "from annoyance, embarrassment, oppression, or undue burden or expense." Such an order may provide that the discovery not be had, Fed. R. Civ. P. 26(c)(1); permit the discovery only upon specified terms and conditions, Fed. R. Civ, P. 26(c)(2); limit the methods by which the discovery may be taken, Fed. R, Civ. P, 26(c)(3); restrict the scope of the discovery, Fed. R. Civ. P. 26(c)(4); or restrict the extent ofdisclosure of the subject discovery, Fed. R. Civ. P. 26¢)(5-8). 7 In assessing good cause, a court is required to weigh severaI different factors, including the need for the discovery by its proponent, the relevance to the litigation, the burden of production placed on the recipient of the request, and the harm that disclosure would cause to the party from which information is requested. Burka v. Dep't of Health and Hum...an Services, 87 F.3d 508, 517 (D.C. Cir. 1996) (citing Federal Op..eh Mkt. Corem'/! of the Fed, Reserve Sv_. v. Merrill, 443 U.S. 340, 362-63 (1979)) (other citation omitted). Thus, thc good cause inquiry is a flexible one requiring the court to weigh the various interests involved in the context of the relevant t:actual issues. United States v. Microsoft Cow,, 165 F.3d 952, 959 (D.C. Cir. 1999) ("Rule 26(c) is highly flexible, having been ? The protections afforded litigants under Federal Rule 26(c) (and Rule 45(c) in the case et'subpoenas) apply to _11 types of'discovery. See O James W, *loorc, Moore's Fcdcr:fi Pnlcticc 20. I!)1 [2][a] (id cd. l_)97) (lbotnote oli_ittcd); see ulso l [:_ldcl-mul_ v. ]_:imllui-st Stutc 5ch. _lIlcl HOS_., 559 [-'. Supp. 153 (I_.D. Pa. 19S2) (considering motion to clu;_sh subt)ocnas issued by meister to state oftlci.'ds, and qtiashing as to one wirncss); Pathe Ixtb., Inc. v. Du Pont Film Nit',,,. Corp+, 3 F.R.D. 11, [4 (S.D.N.Y. 1943) (considering motion to qu.'lsh document subpoena issued by Special Master, and noting that "Rule 45 should be read in conjtmction with Rule 53 .... "}, designed to accommodate alt relevant interests as they arise.") (citing 8 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2036, at 484-86 ([994) ("the existence of good cause for a protective order 'is a factual matter to be determined from the nature and character of the information sought.., weighed in the balance of the factual issues involved in each action.'")) (other citations omitted); Tavoulare..,'3. s v. Washington Post Co., [ 11 F.R.D. 653 (DD.C. 1986) (district court must assess good cause in light of relevant facts and circumstances of the particular case). II. A Protective Order Is Warranted With Respect To Discovery By The Speci.a..I Master-M. gnitor Discovery requests by the Special Master-Monitor in this case are inappropriate and have needlessly imposed a substantial burden on the Interior Defendants, as they have been required to simultaneously respond to arduous and at times overZapping discovery' demands by Plainti fils, prepare their pIans and associated dispositive motions, and generally prepare for the Phase 1.5 trial, s which the Court has said will address the Interior Defendants' efforts as they relate to duties declared by the Court and prescribed in the 1994 Act. Rather than adhere to the discovery oversight and trust reform monitoring roles for which he was appointed, the Special Master-Monitor has become an active participant in the discovery process, thereby making the Court tantamount to a litigant in this case. `) Though Interior Defendants have been preparing for the Phase 1.5 trial, they continue to assert their longstanding objection to it (and to the injunctive relief with which the Court has said it will conclude, see Cobell v. Norton, 226 F. Supp.2d 1, I48, 152 (D.D.C. 2002)), as beyond the _c_)t)c of' tl_c Court's j[ll'isdiction under thc :Xdn//nJstrativc ProccdLll'c :\eL 5 ur.s.c..q 551 et seq. -l'his development is e',cn mo_'c troubling ira tight ot' thc Court's sialcluen[, in its JanL_ary LT, 2003 Mctnorandttm and Order, that ir ruccts r%ularly xx.'itl-t the Special N'lastcr-Monitor to, inter alia, instrt_ct "tho Monitor wi-rich _[_sk hc should l)cribrm next .... ",,Mcmorandum and Ordcr (filed Jan. 17, 2003) at 34. 13 The Special Master-Monitor's actions have atso created an irreconcilable conflict, because he is now a participant in the very process he was charged with overseeing. As a result, the Interior Defendants have been deprived of neutral oversight of the discovery process and a fair hearing on their objections to specific discovery. At the same time, the Interior Defendants are unreasonably being required to respond to both pretrial discovery from the Special Master-Monitor and extensive discovery demands from the Plaintiffs concerning the same general subject matter. This burden is especiaIly unnecessary given that the trust reform issues that are subject to monitoring by the Special Master-Monitor are those the Court has said it will address during tile Phase t.5 triaI in May. For these reasons, the Court should issue a Protective Order that discovery by the Special Master-Monitor not be had._° A. The Sp. ecia_ Maste.r-Monitor Ha.s. Become A De F_lcto L iti.,4ant In The Case The Appointment Order makes clear that the Special Master-Monitor's role in discovery is intended primarily to be supervisory. See Appointment Order at '_I 8 (Special Master-Monitor directed to "oversee the discovery process in this case and administer document production..."). As to trust rctbrm and the Interior Defendants' et'tbrts as they' relate to the duties declared by the Court and prescribed in the t994 Act, his role is strict[>' that ora monitor. Sec id. at _i_i 4-5. Yet, rather than focus on the oversight and monitoring roles set lbrth in the Appointment Order, the Special Master-Monitor has undertaken his own af'finnative discovery campaign against the Interior _) One commentator has warned of precisely the problems that now plague discovery in this case _ts a t'cst, h ol'thc role assumed by thc Special .Xlastct'-Nlonitor: "Thc usc oI'sp_.'cial master's cam aiso ha'_; a disrutctix c ilk)pact on the tl'aditiotlal :zdx crsal iai s,,sicl_: Lilt muster mizht impose mmecessary requirements on thc parties that tend to disturb their case plan and pcrcepli_>ns; Ibc nu_stcr might Strlperimposc his or hcr own sense ot' the case v_hcn dctcrn'_itfiz'_g what and how particular evidence may bc sought; aud thc actiot_:s ol' thc master may iLl;ratiO Or impede thc attorncv