IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
) ELOUISE PEPION COBELL, al., 
) Plaintiffs, 
V. Case No. I :96CV01285 
(Judge Lamberth) 
GALE A. NORTON, Secretary of the Interior, 
al., a ) 
) 
Defendants. 
INTERIOR DEFENDANTS' MOTION TO RECONSIDER 
THE ADMISSIBILITY OF DEFENSE EXHIBITS 105-1 11 
Interior Defendants move for reconsideration of the Court's decision denying the 
admissibility of Defense Exhibits 105-1 11 (for identification) ("DE 105-1 1 1").' DE 105-1 11 are 
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the Morgan Angel draft reports referenced in Mr. Angel's expert report, Defense Exhibit 60. 
Despite Plaintiffs' objection that these draft reports are not sufficiently reliable to be admitted, 
precedent exists to support their admissibility. Moreover, Federal Rule of Evidence 703 also 
supports their admissibility. 
I. 
Corp., 
1 
PRECEDENT EXISTS TO SUPPORT THE ADMISSIBILITY OF DRAFT 
EXPERT REPORTS. 
Although no reported cases appear to address at length the admissibility of draft expert 
reports, some courts have admitted such draft reports into evidence. In Powe v. Chrvsler Fin. 
278 B.R. 539, 552 (Bankr. S.D. Ala. 2002), the court overruled objections to the 
admissibility of two draft reports: 
Counsel for Interior Defendants have consulted with counsel for Plaintiffs, who oppose 
this motion. 
1 Two evidentiary objections were taken under advisement by the 
Court in conjunction with the trial of this case. Chrysler objected 
to admission of plaintiffs' Exhibits 1 10 and 1 1 1. Exhibit 1 10 was a 
draft of the expert witness report of Jan Johnson, the Chapter 13 
trustee . . . . Exhibit 11 1 was a draft of the report of Alex Gray, an 
attorney that represented Chrysler in Mobile in the Powe case. The 
Court concludes the documents are relevant and they are admitted. 
In the context of a summary judgment motion, the Tenth Circuit considered a draft expert report: 
"Even appellant's own experts . . . indicate in their draft expert report that the airline industry 
generally considers lifting and moving baggage to be an essential function of the CSR position.'' 
E.E.O.C. v. United Airlines, hc., 185 F.3d 874, No. 98-2076, 1999 WL 397390, at "5 (10th Cir. 
June 17, 1999) (unpublished op.) Finally, the District Court for the District of Rhode Island 
accepted a draft report into evidence in Rhode Island Committee on Energy v. G.S.A., 397 F. 
Supp. 41,46 n.8 (D.R.I. 1975): 
The draft report (Exhibit 97) . . . was admitted into evidence over 
defendants' objection, not for the truth of the findings made 
therein, but as relevant to a determination of the quantity and 
quality of environmental data available to GSA at the time of its 
disposal action . . . . 
Just as the Rhode Island Committee court accepted a draft report into evidence as relevant to the 
quantity and quality of data available to the GSA, so too should this Court accept DE 105-1 11 
into evidence as relevant to the quantity and quality of data available to Interior. 
Even those reported cases rejecting the admissibility of a draft expert report nonetheless 
support the admissibility of DE 105-1 11 in this case. In Tuff 'N' Rumble Management, Inc. v. 
Profile Records, Lnc., No. 95 Civ. 0246, 1997 WL 158364, at "4 n.4 (S.D.N.Y. Apr. 2, 1997), the 
court rejected plaintiffs attempt to "avoid summary jud,vment by proffering - as an expert's report 
- an unsigned, apparently draft letter without any letterhead from an entity identified simply as 
2 'Sound Associates."' Unlike in Tuff I N ' Rumble, in the present case DE 105- 1 1 1 are clearly 
identified as reports generated by Morgan Angel. Further, Mr. Angel testified about each of the 
Defense Exhibits in question and explained his reliance on each one. This is not a situation, as in 
Tuff 'N' Rumble, in which the reliability of the underlying draft is in issue. 
Ln Bennett v. PRC Public Sector. Inc., 93 1 F. Supp. 484, 503 (S.D. Tex. 1996), plaintiffs 
offered into evidence a list of articles compiled by their expert and attached to his preliminary 
report. The court refused to admit this list into evidence, ruling that 
Unless [the expert] is genuinely familiar with the contents of an article, the article 
is in fact relevant to an issue before the Court, and [the expert] is prepared to be 
cross-examined on the article, it may not be offered into evidence. 
Bennett, 93 1 F. Supp. at 503. Unlike Bennett, in the present case Mr. Angel testified as to his 
familiarity with DE 105-1 11, those exhibits are relevant to the Court's understanding of Interior's 
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ability to conduct a historical accounting, and Plaintiffs have already cross-examined Mr. Angel 
about the exhibits. Under the Bennett standards, therefore, the Court should admit the exhibits 
into evidence. 
In Grove Fresh Distributors, Inc. v. Everfresh Juice Co., No. 89 C 11 13, 1992 WL 38998, 
at "1 (N.D. Ill. Feb. 24, 1992), plaintiff offered "an unfinished report by Coopers & Lybrand as 
expert evidence to support its claim for lost profits." The "expert refused to complete the report 
because the plaintiff had fallen behind in payment." Td. The unfinished report contained "fairly 
cryptic footnotes," never mentioned defendant or tied any data to it, and provided no summary or 
"explanation of the analysis used." Id. "The result [was] an unsubstantiated and inadmissible 
document." Id. The court also noted that plaintiff would ''not be able to bolster the report with 
expert testimony at trial." Id. 
3 Unlike the report in Grove Fresh, DE 105-1 11 are works in progress, rather than reports 
unfinished because of lack of payment. More importantly, unlike the report in Grove Fresh, DE 
105-1 I I are not cryptic but rather clearly tie the extant historic data to a historical accounting. In 
addition, unlike in Grove Fresh, Interior Defendants have "bolstered" these exhibits with the trial 
testimony of Mr. Angel. As the Grove Fresh court noted that the Coopers & Lybrand report 
"might be helpful" in another case between the parties, &. at "2, so too should this Court 
recognize the helpfulness of Interior's proffered exhibits and admit them into evidence.' 
IT. FED. R. EVID. 703 SUPPORTS ADMISSIBILITY OF THE iMORGAN ANGEL 
DRAFT REPORTS. 
Among other things, Fed. R. Evid. 703 permits an expert to base an opinion on 
underlying facts and data, even if those facts and data are not themselves admissible. The Rule 
specifies that 
Facts or data that are otherwise inadmissible shall not be disclosed 
to the jury by the proponent of the opinion or inference unless the 
court determines that their probative value in assisting the jury to 
evaluate the expert's opinion substantially outweighs their 
prejudicial effect. 
Fed. R. Evid. 703. Because the present case involves a bench trial, the Court supplants the jury 
as the finder of fact. As the finder of fact, the Court should consider DE 105-1 I 1 because their 
probative value in assisting the Coui-t in evaluating Mr. Angel's expert testimony outweighs any 
prejudicial effect of their admission. There is little, if any, prejudicial effect in admitting these 
Along with these cited cases, one court has also held that, in the discovery context, 
"draft reports o f . . . experts are evidence." Trigon Ins. Co. v. United States, 204 F.R.D. 277, 288 
(E.D. Va. 2001). On the other hand, one court has held more generally that "the Federal Rules of 
Evidence do not allow for introduction of expert reports into the record in the face of an 
objection by an opposing party." Cotia Steel v. M/V JAG VDYA, No. Civ. A. 92-1802, 1996 
WL 194927, at *2 n.2 (E.D. La. Apr. 19, 1996). 
4 exhibits because the Court (perhaps unlike a jury) is savvy enough to understand their role in the 
development of the historians' opinions. More importantly, the exhibits have great probative 
value in that they provide support for Mr. Angel's opinion^.^ 
DE 105-1 11 are also admissible under Rule 703 as a rebuttal to Plaintiffs' attack on Mr 
Angel's expert opinions. Inasmuch as Plaintiff cross-examination of Mr. Angel, both during voir 
dire and during their main cross, attacked his reliance on "draft'' Morgan Angel reports, Lnterior 
Defendants should be permitted to rebut those attacks by introducing those underlying reports 
Mr. Angel relied upon. The Rule itself contemplates such a use of underlying information: that 
Of course, an adversary's attack on an expert's basis will often open the door to a 
proponent's rebuttal with information that was reasonably relied upon by the 
expert, even if that information would not have been discloseable initially under 
the balancing test. . . . 
Fed. R. Evid. 703 advisory committee's note, 2000 amendments. The Court should therefore 
permit Interior Defendants to rebut Plaintiffs' attacks on Mr. Angel's opinions by accepting into 
evidence those reports that Mr. Angel relied upon in reaching those opinions. 
Conclusion 
Precedent exists to admit DE 105-1 11 into evidence. Rule 703 supports the admissibility 
of the draft reports as well. Therefore, the Court should accept DE 105-1 1 1 into evidence. 
Interior Defendants recognize that, if admitted solely under Fed. R. Evid. 703, the Court 
may use the exhibits to evaluate the historians' testimony, but may not use the exhibits for any 
substantive purpose. See Fed. R. Evid. 703 advisory committee's note, 2000 amendments ("If the 
otherwise inadmissible information is admitted under this balancing test, the trial judge must 
give a limiting instruction upon request, informing the jury that the underlying information must 
not be used for substantive purposes.") 
5 Respectfully submitted, Dated: June 23,2003 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SAND-. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
TERRY PETRIE 
Trial Attorney 
JOHN J. SIEMIETKOWSKI 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-3368 
(202) 514-9163 (fax) 
6 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on June 23, 2003 I served the foregoing Interior 
Defendants' Motion to Reconsider the Admissibility of Defense Exhibits 10.5- I I 1 by hand upon: 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW 
Box 6 
Washington, D.C. 20005 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
Elliott Levitas, Esq 
11 00 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Per the Court's Order of April 17,2003, 
by facsimile and by U S . Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O.Box 850 . 
Browning, MT 5 94 17 
(406) 338-7530 
By facsimile and U.S. Mail: 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Avenue, N.W. 
13 th Floor 
Washington, D.C. 20006 
(202) 986-8477