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! 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DlSTRICT OF COLUMBIA 
ELOUISE PEPION COBELL a 4, 
Plaintiffs, 
V. 
GALE A. NORTON, Secretary of 
the Interior, gj4, 
Defendants. 
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No. 1 :96CV01285 
(Judge Lamberth) 
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ 
MOTION TO CONTINUE DEFENDANTS’ MOTIONS FOR 
SUMMARY JUDGMENT PURSUANT TO FED. R CIV. P. 56(0 AND 
TO ENLARGE PLAINTIFFS’ TIME TO RESPOND THERETO 
Defendants respectfully submit the following opposition to Plaintiffs’ Motion to Continue 
Defendants’ Motions for Summary Judgment Pursuant to Fed. R. Civ. P. 56(f) and to Enlarge 
Plaintiffs’ Time to Respond Thereto (“Motion for Continuance”). The Motion for Continuance 
should be denied. 
INTRODUCTION 
On October 17,2002, this Court entered a trial discovery schedule order that incorporated 
the date set in its September 17, 2002 Order for submission of summary judgment motions. 
Phase 1.5 Trial Discovery Schedule Order, dated October 17,2002 (“Scheduling Order”) at 1. 
Pursuant to that Order, on January 3I , 2003, Defendants filed three motions for partial summary 
judgment, with accompanyng memoranda in support: (1) Defendants’ Motion for Partial 
Summary Judgment that Interior’s Historical Accounting Plan Comports with Their Obligation to 
Perform an Accounting (“Accounting Plan Summary Judgment Motion”); (2) Defendants’ 
Motion for Partial Summary Judgment that Interior’s Trust Management Plan Comports with This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
Their Obligation to Perform an Accounting (“Trust Management Plan Summary Judgment 
Motion”); and (3) Defendants’ Motion for Partial Summary Judgment Regarding Statute of 
Limitations and Laches (“Statute of Limitations Summary Judgment Motion”). 
Under LCvR 7.1(b), Plaintiffs’ oppositions were due on February 1 1 , 2003. On that date, 
Plaintiffs filed a motion for a 30-day enlargement of time in which to oppose Defendants’ three 
summaryjudgment motions (“First Motion for Enlargement”). Thc Court did not grant, or 
otherwise rule on Plaintiffs’ First Motion for Enlargement as of February 11,2003, and Plaintiffs 
did not file any opposition to Defendants’ summary judgment motions. Any opposition is now 
untimely and Defendants’ motions should be treated as conceded. See LCvR 7.1(b). 
On March 13,2003, Plaintiffs filed the Motion for Continuance, announcing that they 
were not going to oppose the summaryjudgment motions within the 30-day period of 
enlargement which they had apparently granted themselves. In their Motion for Continuance, 
Plaintiffs do not ask for the same relief with respect to all three summary judgment motions. 
With respect to the Statute of Limitations Summary Judgment Motion, Plaintiffs ask for 
permission to file an opposition 10 days after all documents have been produced pursuant to all 
“Production Orders of this Court.” Motion for Continuance at 1; Proposed Order at 14 [sic]. 
With respect to the Accounting Plan and Trust Management Plan Summary Judgment Motions 
Plaintiffs ask that they be allowed to file their oppositions “1 0 days afier the final expert witness 
depositions.” Motion for Continuance at 1; Proposed Order at 14 [sic]. Finally, Plaintiffs ask 
that if the Motion for Continuance is denied they be given an additional 10 days to file 
oppositions to the summary judgment motions. Plaintiffs’ Motion for Continuance should be 
denied in all respects. 
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ARGUMENT 
After almost seven years of this litigation, after approximately 600,000 pages of 
documents have been produced to Plaintiffs in response to their discovery requests, after millions 
of pages of additional documents have been made available to plaintiffs for their inspection in 
response to their requests, after over 200,000 pages of documents have been given to Plaintiffs in 
response to requests from the Special Master and Special Master-Monitor, it is nothing short of 
astonishing for Plaintiffs now to claim that they are unprepared to respond to a summary 
judgment motion because they need more time to gain more knowledge about their case. If the 
need for additional discovery were, as described in the Motion for Continuance, so critical to 
Plaintiffs’ ability to respond to the summary judgment motions, it is more than passing strange 
that Plaintiffs made no mention of this urgent need a month earlier when they filed their first 
Motion for Enlargement. No good cause exists for the relief sought, and as noted below, 
granting the motion would greatly prejudice Defendants. 
I. PLAINTIFFS HAVE NOT MET THEIR BURDEN TO SHOW THE NEED FOR A 
CONTINUANCE OF DEFENDANTS’ STATUTE OF LIMITATIONS SZTMMARY 
JUDGMENT MOTION 
A. Plaintiffs Have Not Identified The Facts Essential To Justify Their 
Opposition That They Have Been Unable To Obtain in Discovery 
A party seeking a continuance of a summaryjudgment motion on the grounds that it 
needs additional discovery must identify “facts essential to justify the party’s opposition” that it 
has been unable to obtain. Fed. R. Civ. Proc. 56(f). A party seeking deferral of summary 
judgment proceedings under Rule 56(f) cannot rely upon generalized conclusions that 
information not yet obtained in discovery might be useful. Rather, the party seeking deferral 
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must "indicate what facts shc intended to discover that would create a triable issue and why she 
could not produce them in opposition to the motion." Carpenter v. Federal Nat'l MortgaPe Ass'n, 
174 F.3d 231, 237 (D.C. Cir. 1999). In Carpenter, the party seeking deferral failed that test 
because she offered mere conclusions about what discovery might show, if conducted. Id. As 
the D.C. Circuit repeatedly has stated, "[ilt is well settled that [c]onclusory allegations 
unsupported by factual data will not create a triable issue of fact." Id.at 237 (quoting Exxon 
Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)) (quotation omitted, alteration of original). 
In Exxon, the court observed that "[ilt is not the intent of Rule 56 to preserve purely speculative 
issues of fact for trial." 663 F.2d at 128. 
Thus, controlling precedent requires that a movant under Rule 56(f) state the specific 
evidence that it would obtain in discovery and show how that evidence would demonstrate a 
genuine issue of material fact.' In Bwd v. EPA, 174 F.3d 239,248 n.8 (D.C. Cir. 1999), the 
court affirmed the district court's denial of a Rule 56(Q motion, noting that the movant "merely 
alleged that 'there may well be knowledge on the part of EPA employees or undisclosed 
documents"' on an issue. This "plainly conclusionary assertion without any supporting facts" was 
insufficient. Id. 
Plaintiffs' cited case (Motion for Continuance at 6), Pacquin v. Federal Nat'I Mortgage 
Ass'n, 119 F.3d 23 (D.C. Cir. 1997), is not to the contrary. In that employment discrimination 
case, the Rule 56(Q movant identified specific evidence (narrative evaluation reports for 
executives at the movant's level) that it needed, and showed how that evidence would create a 
1/ Any purported facts that may be offered by Plaintiffs in a reply brief on this motion 
should be rejected as untimely. 
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triable issue of fact.* 
Plaintiffs mischaracterize Paquin in suggesting that Rule 56(f)entitles a respondent to 
delay summary judgment proceedings whenever it desires more “foundational” (Motion for 
Continuance at 7) information. The movant under Rule 56(f) is required to show what specific 
evidence it needs and how that evidence will demonstrate a genuine issue of material fact.3 
Plaintiffs’Motion fails under this standard. The only showing that Plaintiffs offer is 
Y The defendant-employer in Paquin asserted that the plaintiff received lower numerical 
evaluation scores than other officers. Plaintiff claimed that this was a pretext, and that he needed 
to obtain in discovery the narrative evaluations. Those evaluations would reveal whether the 
employer’sexplanation was pretextual, because “were the evaluations to reveal that other 
executives received written evaluations less favorable than those of [plaintifq but nonetheless 
received higher numerical scores, this would tend to discredit [the employer’s] explanation that 
[plaintiff] was terminated for a legitimate non-discriminatory reason.’’ 119 F.3d at 28. Thus, the 
plaintiff specified the precise evidence he needed in discovery and showed how that particular 
evidence could create a genuine issue of fact. 
The Supreme Court eases cited by Plaintiffs (Motion for Continuance at 2-3) do not 
establish a different standard for Rule 56(f) motions than the one enunciated by the D.C. Circuit. 
-See Farmer v. Brennan, 5 1 1 U.S. 825, 849 (1 994) (in papers accompanying his Rule 56(f) 
motion, movant identified specific facts pertinent to his Eighth Amendment claim which he 
expected to be contained in outstanding document requests); Anderson v. Liberty Lobbv, Inc., 
477 U.S. 242, 250 n.5 ( 1 986) (no Rule 56(Q motion had been filed and the Court merely noted in 
dicta that this rule ensures the opportunity to discover essential “information”); Crawford-El v. 
Britton, 523 U.S. 574 ( 1 998) (again, no Rule 56(f) motion was filed and Court’s dicta notes 
existence of rule to obtain essential “facts”). Similarly, the cases from other jurisdictions cited 
by Plaintiffs (Motion for Continuance at 4-6) do not set a Rule 56(f) standard at odds with D.C. 
Circuit precedent and do not permit a party to make conclusory claims about the need for more 
discovery without identifying the specific facts the party has been unable to obtain. See, e.?., 
Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27,35 (1st Cir. 1995) (Rule 56(f) motion 
properly denied where movant’s affidavit did not address any specific undisputed facts); 
Resolution Trust Coy. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) 
(movant must “set forth a plausible basis for believing that specified facts, susceptible of 
collection within a reasonable time frame, probably exist”); Willmarr Poultrv Co. v. Morton- 
Nonvich Prods., hc., 520 F.2d 289, 292 (8th Cir. 1975) (summaryjudgment on statute of 
limitations grounds may be appropriate without any discovery); Commonwealth Aluminum 
C o p v. Markowitz, 164 F.R.D. 117, 120-21 (D. Mass. 1995) (no discovery had taken place and 
movant identified specific issues which it needed from discovery). 
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within the Affidavit of Dennis M. Gingold ("Gingold Aff.")),attached to their Motion for 
Continuance. The affidavit fails to show how any allegedly non-produced information would 
demonstrate the existence of genuine issues of material fact. For paragraphs 2 through I I , 
Plaintiffs' counsel makes generalized allegations of failures to comply with production requests 
and production orders, but identifies no specific documents and fails to show how any allegedly 
non-produced material would indicate a genuine issue of material fact. For example, paragraph 9 
contains the conclusory allegation that "the e-mail recovery and search is likely to producc 
data. . . and shed light on additional evidence that is relevant to material facts stated by 
defendants in support of their motions for summaryjudgment." This is precisely the type of 
"plainly conclusionary assertion without any supporting facts" that the court rejected in Byrd v. 
m,174 F.3d at 248 n.8. 
The rest of the affidavit offers no better support for the Motion for Continuance. 
Paragraphs 12 and 13 refer to a list of specific documents, but Plaintiffs' counsel fails to show 
how even a single one of those documents would create a genuine issue of material fact; under 
the cases discussed above, it is not sufficient that documents allegedly "relate directly" to the 
parties' respective plans or expert reports (Gingold Aff. at 4,y 13) or that they "are expected to 
contain evidence relevant to facts" in Defendants' summary judgment motions (id.at 8,T 14) or 
that they "should shed light" on "discovery of other evidence." (d). 
Paragraph 18 of the Gingold Affidavit refers to documents requested by the Special 
Master-Monitor, but merely concludes that "it is expected" that such information "will provide 
additional evidence that is important and relevant to plaintiffs' opposition to defendants' motions 
for partial summary judgment." That conclusory remark utterly fails to demonstrate what 
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evidence Plaintiffs need and fails to show how it would demonstrate a genuine issue of material 
fact. Indeed, it would be difficult to come up with a better example of an insufficient statement 
under Rule 56(f). 
The central focus of Defendants' Statute of Limitations Summary Judgment Motion is 
that Plaintiffs' cause of action accrued ~ and the statute of limitations began to run - when 
Plaintiffs' knew or should have known of allegations of trust violations. Memorandum in 
Support of Statute of Limitations Summary Judgment Motion at 2. The material facts which 
support this contention are not contained in secret government documents unavailable to 
Plaintiffs. The summary judgment motion is not based upon what Defendants knew, but rather is 
based upon what Plaintiffs knew or should have known, as demonstrated by their own 
admissions and in publicly available documents. Therefore, Plaintiffs cannot claim that they 
need still more government documents in order to respond. 
As discussed in Defendants' Memorandum accompanying the Statute of Limitations 
Summary Judgment Motion, the Court's 1998 opinion, Cobell v. Babbitt, 30 F. Supp. 2d 24,44 
(D.D.C. 1998), set the standard for the statute of limitations issues in this case. The Court ruled 
that the limitations period would run from when Plaintiffs knew or should have known of their 
right of action. 30 F. Supp. 2d at 44. 
Defendants' Statute of Limitations Summary Judgment Motion addresses that precise 
question. The Statement of Material facts in support of the Statute of Limitations Summary 
Judgment Motion relies upon the named Plaintiffs' own deposition testimony and their other 
responses to discovery, public reports and documents that Plaintiffs cited in their recently fifed 
plan and in their prior responses to discovery, other publicly available government reports, and 
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publicly available articles from the media and other public sources. 
Because the suminary judgment motion involves the question of what Plaintiffs knew, or 
should have known, and is based upon their own admissions and public documents that 
demonstrate knowledge or constructive knowledge, Plaintiffs cannot credibly assert a lack of 
access to the relevant information. Plaintiffs have not shown, and cannot show, that any specific 
evidence allegedly not produced to them would undercut the clear showing that they knew, or 
should have known, of their claims prior to October 1, 1984. Thus, they fail to show that alleged 
non-responsiveness to discoveryjusti fies a continuance of the Statute of Limitations Summary 
Judgment Motion. 
In addition, Plaintiffs have long known that the statute of limitations issue would come 
before the Court. If they lack any necessary evidence it is because they did not responsibly 
pursue such information. The Court's 1998 opinion (cited above) placed the parties on notice of 
the precise factual matters that it would consider in ruling on limitations questions. Plaintiffs 
would be hard-pressed to feign surprise that they now must present facts going to those 
questions. Plaintiffs have had almost four and a half years since the Court so ruled to gather their 
facts. Moreover, as discovery for Phase 1.5 commenced, Defendants expressly put Plaintiffs on 
notice that they intended to pursue the defense of limitations. See Discovery Conference 
Transcript at 112-13, 129 (Oct. 3,2002) (statements of counsel for Defendants). If they believed 
that Defendants withheld infomation specifically pertinent to that issue, they should have sought 
relief long ago, rather than waiting in the grass and using an allegation of non-compliance as 
though it is a complete defense to responding on the merits. 
This is the first time that Plaintiffs have indicated that they need additional information to 
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demonstrate that many of their claims in this case are not barred by the applicable statute of 
limitations and the doctrine of laches. Indeed, tellingly, no mention of this supposed need for 
additional information was made in their First Motion for Enlargement. For the reasons 
discussed below in Section LII., Defendants would be unduly prejudiced if Plaintiffs are permitted 
their requested delay. 
Plaintiffs have not met, nor can they meet, their burden of identifylng the specific facts, 
which they reasonably expect to obtain in any further discovery, that are allegedly needed to 
oppose the Statute of Limitations Summary Judgment motion and create a triable issue of 
material fact. 
B, Plaintiffs Have Had Ample Opportunity To Discover Facts Essential To 
Their Opposition, If Such Facts Existed 
Because Plaintiffs halie not identified which essential facts they reasonably expect to 
obtain from any further discovery, it is perhaps unnecessary for Defendants to address the 
conclusory allegations regarding the status of discovery in this litigation contained in the Gingold 
Affidavit. Defendants, however, do not want the wholly improper and misleading claims in the 
Gingold affidavit to go unchallengcd and cloud the record in this case. 
The Gingold affidavit identifies eight areas where Plaintiffs claim (in conclusory fashion) 
that additional discovery is needed. These areas are: (1) Paragraph 19 of the First Order for 
Production (Gingold Aff. at 77 3-5); (2) “1,001 Interrogatories,”4dated July 5, 2001, related to 
Treasury Defendants’ Paragraph 19 productions (Gingold Aff. at 116); (3) Plaintiffs’ formal 
Requests for Production of Documents, Two through Five (“RFP 2-5”) (Gingold Aff. at T[ 7); 
With subparts, over 1,500 interrogatories were included in this document. 
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(4)Plaintiffs’ Eighth Formal Request for Production of Documents (“WP 8”) (Gingold Aff. at 
fi 7); ( 5 ) Production of emails by Defendants (Gingold Aff. at 77 8-11); (6) Production of 
Documents associated with what is described by Plaintiffs as the “Joe Christie Inventory” 
(Gingold Aff. at 711 12-13); (7) GAO correspondence (Gingold Aff. at 7 14); and (8) Documents 
associated with Special Master Monitor requests (Gingold Aff. at 1118). 
ParaFraph 19 productions. As to Paragraph 19 discovery, Defendants’ have produced 
over 460,000 pages of documents and have made available millions of more pages for inspection 
by Plaintiffs. See, e.g., Paragraph 19 Transmittal Letters, attached as Exhibit I; Paragraph 19 
Inspection Letters, attached as Exhibit 2. Plaintiffs have never even taken the opportunity to 
view any of these documents that Defendants have made available. 
Contrary to the implication in the Gingold affidavit (Gingold Aff. at y? 3-6), Treasury 
Defendants have completed their Paragraph 19 production and a motion to purge contempt is 
pending before the Special Master on this issue. As Plaintiffs have noted, out of an abundance of 
caution, Interior continues to assess the completeness of its Paragraph 19 production. However, 
as described above, Interior has produced an enormous volume of Paragraph 19 documents at 
tremendous cost. Plaintiffs simply do not, and cannot, identify the specific facts essential to their 
opposition that they reasonably expect to come from any additional Paragraph 19 documents. 
Moreover, Plaintiffs should not be heard now in their collateral attack on the Paragraph 
19 production plans submitted to the Court by Defendants (seeGingold Aff. at fi 4). Plaintiffs 
allowed the Defendants to proceed with their bi-weekly status reports, detailing the progress of 
their compliance with Paragraph 19, and accepted the monthly reports of the Special Master 
detailing Defendants’ Paragraph 19 search methodology without filing any pleading either 
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challenging the Plans or seeking any changes to the methodology being employed. Plaintiffs did 
not timely object to, or challenge, Defendants’ Document Production Plans and have thus waived 
any objection to those plans. 
“l.OOl ‘I Treasury InterroPatories, As Plaintiffs well know, the set of “1,001 ” 
interrogatories, dated July 5 , 2001, related to Treasury’s compliance with its Paragraph 19 
production obligations, were never signed nor properly served on Treasury.’ See 
Correspondence between Counsel, attached as Exhibit 3. In addition, these interrogatories 
remain the subject of a Motion for Protective Order, filed by Treasury Defendants on July 13, 
2001, pending before the Special Master. Moreover, even if the Court were to deny the Motion 
for Protective Order and require Treasury Defendants to answer, Plaintiffs have not identified 
any facts that they would reasonably expect to elicit from answers to these interrogatories that are 
essential for their opposition to Defendants’ summaryjudgment motions. 
RFP 2-5. Defendants have produced, or made available for inspection, approximately 
35,000 pages of documents responsive to the requests in Plaintiffs’ RFP 2-5, to which 
Defendants did not assert objections. See, e.?., Transmittal Letters, attached as Exhibit 4. 
Contrary to the surprising assertion by Mr. Gingold (Gingold Aff. at 7 7), Defendants did 
supplement their production after the Special Master issued a Report & Recommendation on 
Plaintiffs’ motion to compel on May 11, 1999. See Transmittal Letter of May 25, 1999, attached 
as Exhibit 5. 
On October 3,2002, at the first Phase 1.5 discovery conference before Special Mastery 
These interrogatories were transmitted by email to counsel for Treasury and described in 
that email as “1,001 Love You Nots.” 
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Monitor Kieffer, Plaintiffs raised the issue of prior discovery which they claimed was 
outstanding. Discovery Conference Transcript at 203-210 (Oct. 3, 2002), attached as 
Exhibit 6 . In a letter issued the next day, the Special Master-Monitor told Plaintiffs that if they 
desired production of prior discovery which they felt had not been fully responded to and which 
were still relevant to remaining issues in the case they should go to the Court or Special Master 
Balaran for resolution of these matters. Kieffer Letter of October 2[sic], 2002, attached as 
Exhibit 7. Plaintiffs did nothing. Plaintiffs should not get a continuance now if they were tardy 
over the last six months in seeking any old discovery they claim is outstanding, especially where, 
again, they are unable to identify specific facts which they reasonably expect to acquire from 
further discovery. 
RFP 8. In Defendants’ response to the 224 categories of document requests in Plaintiffs’ 
RFP 8, served on December 16,2002, Defendants asserted substantial objections. See 
Defendants’ Joint Response to RFP 8, attached as Exhibit 8. Nevertheless, Treasury Defendants 
offered to make available certain documents for inspection by Plaintiffs and Interior Defendants 
have produced some responsive documents. See Joint Response to RFP 8; Transmittal Letter, 
attached as Exhibit 9. Plaintiffs did not avail themselves of the opportunity to inspect the 
Treasury documents and did not move to compel the production of any documents under RFP 8 
to which Defendants had raised objection. More importantly, Plaintiffs again fail to identify any 
fact related to the summaryjudgment motion which they reasonably expect to obtain from an 
RFP 8 document request. 
Emails. Defendants have produced thousands of emails to Plaintiffs in this litigation. 
See, e.p;., Declaration of Michael Kingsley, attached as Exhibit 10. Plaintiffs make no attempt to 
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identify any prior discovery request to which an allegedly unproduced email would be 
responsive, much less reasonably likely to elicit a particular fact which Plaintiffs claim to need in 
order to respond to Defendants’ summaryjudgment motion. 
Joe Christie Inventory. Attached as Exhibit 1 to the Gingold Affidavit is a document 
which Plaintiffs cryptically refer to as the “Joe Christie Inventory.” Plaintiffs do not identify who 
authored this document, when it was created, or how they obtained it. Curiously, the fax line 
across the top of each page, which might provide some clue as to the source of the document, has 
been mysteriously blacked out. 
Assuming the “Joe Christie Inventory” is itself authentic, and identifies authentic 
documents, Plaintiffs do not identify whether the inventory itself would be responsive to any 
prior document request and do not identify which prior requests they believe would call for the 
production of any of the documents described in the “inventory.” Although Mr. Gingold 
concludes, without elucidation, that a listed subset of the “Joe Christie Inventory” documents 
“appear relevant to each of defendants’ partial motions for sunmary judgment” (Gingold Aft at 
7 13), Plaintiffs’ counsel again fails to grasp the requirement of Rule 56(Q6 Plaintiffs must show 
what facts they reasonably expect to obtain from a document they claim should have been 
previously produced, and how those facts create a triable issue of material fact that would defeat 
summary judgment. 
GAO correspondence. The requested GAO correspondence has already been produced 
It should also be noted that Plaintiffs only ask for a continuance of the Accounting Plan 
and Trust Management Plan Summary Judgment Motions until 10 days after the final expert 
deposition. With respect to those summary judgment motions, they do not ask for a continuance 
until after some putatively relevant documents are produced. 
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to Plaintiffs. Transmittal Letter, attached as Exhibit 11. As with each of the other 
categories, although Plaintiffs airily conclude that this requested correspondence is related to the 
summary judgment motions (Gingold Aff at 71 14), Plaintiffs do not describe the facts essential 
to their oppositions that this correspondence could reasonably be expected to contain. 
Special Master-Monitor Requests. Plaintiffs have been given copies of all nonprivileged 
documents that were produced to the Special Master-Monitor in response to his 
various requests. See, e.g, Transmittal Letters, attached as Exhibit 12. Plaintiffs do not cite any 
Order or Federal Rule of Civil Procedure, and Defendants are unaware of any, that would require 
a party to produce privileged information to the opposing party where such information has been 
produced to a court, or court-appointed official, for in camera review, and has been included on a 
privilege log. In any event, Plaintiffs again fail to disclose which necessary facts they expect to 
obtain by the production of further documents to the Special Master-Monitor. 
Additional Document Productions. Although not addressed by Plaintiffs, the Court 
should be aware that, in addition to the documents produced to Plaintiffs as described above, 
Defendants have produced to Plantiffs, or made available for inspection, hundreds of thousands 
of pages of documents pursuant to: (1) informal requests by Plaintiffs; (2) Plaintiffs’ various 
interrogatories; (3) RFP 6; (4)RFP 7; and (5) Special Master Balaran requests. See, e.g., 
Transmittal Letters, attached as Exhibit 13. In short, Plaintiffs have received a remarkable 
amount of information from Defendants over the course of this litigati~n.~ It is entirely 
2/ In addition to the immense number of documents that Defendants have produced thus far, 
Plaintiffs have also received considerable information from Defendants’ answers to 
interrogatories. Plaintiffs have also gathered, or had the opportunity to gather, facts potentially 
related to their oppositions from the numerous depositions they have conducted. 
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inappropriate, on the eve of the Phase 1.5 trial, to grant Plaintiffs a continuance of any summary 
judgment motion. 
11. PLAINTIFFS HAVE NOT MET THEIR BURDEN TO SHOW THE NEED FOR A 
CONTINUANCE OF DEFENDANTS’ ACCOUNTING PLAN AND TRUST 
MANAGEMENT PLAN SUMMARY JUDGMENT MOTIONS 
Plaintiffs ask that the Accounting Plan and Trust Management Plan Summary Judgment 
Motions be continued “until 10 days after the final expert witnesses depositions.” Motion for 
Continuance at 1. The only support they offer for this request is the conclusory allegation in the 
Gingold Affidavit that “additional significant information” will be elicited from the deposition 
testimony of the experts retained by Defendants for Phase 1.5 trial. Gingold Aff. at f 17. 
As discussed above, the standard for Rule 56(Q requires that a niovant demonstrate facts 
essential to their opposition that they reasonably expect to elicit from further discovery. 
Plaintiffs do not identify what facts they expect to uncover during expert depositions. Perhaps 
this is because it is difficult to comprehend how Plaintiffs can reasonably expect to obtain facts 
from expert witness testimony, when an expert only testifies as to his opinion, based upon facts 
supplied by someone else. If an expert is testifying as to facts, he is no longer testifying as an 
expert. Plaintiffs cannot reasonably expect to elicit any facts from further expert witness 
deposition testinlony. 
It is also surprising that Plaintiffs would now request such a continuance. The 
Scheduling Order - to which Plaintiffs agreed -set a very carefully crafted sequence of events 
leading up to Phase 1.5 trial. Summaryjudgment motions were to be filed on January 3 1, 2003. 
Scheduling Order at 1. Expert discovery was to conclude on April 10,2003. Scheduling Order 
at 2. No provision was made in the Scheduling Order to modify LCvR 7.l(b) and permit 
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oppositions to summary judgment motions to be filed on April 21,2003 -seven business days 
before trial begins. If such a schedule as is suggested now by Plaintiffs were adopted, 
Defendants’ replies to Plaintiffs’ oppositions would be due on the day trial begins. Indeed, even 
Plaintiffs implicitly recognized that such a delay in filing an opposition would prejudice 
Defendants when they told the Court in their First Motion for Enlargement that they would file 
their oppositions 45 days prior to trial, and that this amount of time should not be deemed 
prejudicial to Defendants. First Motion for Enlargement at 3. Plaintiffs also failed to disclose in 
their First Motion for Enlargement their current urgent need to obtain expert witness testimony in 
order to respond to Defendants’ summaryjudgment motions. 
Plaintiffs’ extraordinary, and wholly unsupported, Motion for a Continuance of the 
Accounting Plan and Trust Management Plan Summary Judgment Motions should be denied. 
111. PLAINTIFFS’ SECOND MOTION FOR ENLARGEMENT OF TIME TO 
RESPOND SHOULD BE DENIED 
Plaintiffs squeeze in at the very end of their Motion for Continuance a “request” that if 
the Court denies their Motion for Continuance, they still get “10 days within which to respond to 
defendants’ three motions for summary judgment.” Motion for Continuance at 9. Plaintiffs’ 
responses are already untimely. Defendants have already been prejudiced by Plaintiffs’ delay in 
responding. At a critically important time of trial preparation, Defendants have had to waste 
valuable time in responding to Plaintiffs’ two meritless Motions for Enlargement. For all of the 
reasons described in Defendants’ Opposition to Plaintiffs’ First Motion for Enlargement, which 
have only been exacerbated by the further enlargement Plaintiffs seek, Defendants will be unduly 
prejudiced by permitting Plaintiffs to file their oppositions at this late date. Plaintiffs’ delay has 
also made it virtually impossible that the Court will have sufficient time to appropriately 
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consider, and rule upon, Defendants summaryjudgment motions. It would be unconscionable to 
permit Plaintiffs’ to have 10 more days of delay on top of the more than 40 days they have 
already taken. Plaintiffs’ second motion for enlargement should be denied. 
CONCLUSION 
For these reasons, Plaintiffs’ Motion for Continuance should be denied. 
Dated: March 27,2003 Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHNSTOPHER KOHN 
Director 
Deputy Director 
D.C. Bar No. 261495 
JOHN T. STEMPLEWICZ 
Senior 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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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 1 
1 
Plaintiffs, ) 
) 
V. ) Case No. I :96CVO1285 
) (Judge Lamberth) 
GALE NORTON, Secretary of the Interior, &, ) 
) 
Defendants. 1 
_____ : 
ORDER 
This matter comes before the Court on Plaintiffs’ Motion to Continue Defendants’ 
Motions for Summary Judgment Pursuant to Fed. R. Civ. P. 56(f) and to Enlarge Plaintiffs’ Time 
to Respond Thereto. Upon consideration of the Motion, the responses thereto, and the record in 
this case, it is hereby 
OIZDERED that PIaintiffs’ Motion for a Continuance is DENIED; 
ORDERED that Plaintiffs’ Motion for an enlargement of time is DENIED. 
SO ORDERED. 
Date: 
ROYCE C. LAMBERTH 
United States District Judge This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
cc: 
Sandra P. Spooner 
John T. Steinplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
202-318-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N W 
Washington, D.C. 20036-2976 
202-822-0068 
El1iott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
CERTIFICATE OF SERVICE 
1 declare under penalty of perjury that, on March 27, 2003, I served the foregoing 
Deferidants’ Opposition to Pluint f l s Motion to Continue Defendants’ Motionsfor Summaw 
Judgment Pursuant to Fed. R. Civ. P. 5 6 0 und to Enlarge Pluiiztiffs ’ Time to Respond Thereto 
by U.S. Mail upon: 
Keith Harper, Esq. Dennis M Gingold, Esq. 
Native American Rights Fund Mark Kester Brown, Esq. 
1712 N Street, NW 1275 Pennsylvania Avenue, Nw 
Washington, DC 20036-2976 Ninth Floor 
202-822-0068 Washington, DC 20004 
202-318-2372 
(Courtesy copy of Defendants’ Opposition without exhibits by facsimile on Messrs. Harper, 
Gingold ) 
Elliott Levitas, Esq. 
I100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
arid by hand upon: 
Joseph S. Kieffer, ID, Esq. 
Special Master-Monitor 
420 7th Street, NW 
Apt 705 
Washington, DC 20004 
facsimile of Defendants’ Opposition without exhibits, and complete copy to be delivered by 
hand on March 28,2003 upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Ave., NW 
12th Floor 
Washington, DC 20006 
202-986-8477