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' UNOPPOSED MOTION TO LIFT SPECIAL MASTER’S MAY 9, 2002 PROTECTIVE ORDER AND TO UNSEAL DEPOSITION TRANSCRIPTS TAKEN BY SPECIAL MASTER Pursuant to Rule 7(b) of the Federal Rules of Civil Procedure and Local Civil Rule 7, Defendants respectfully move this Court for an Order lifting the Protective Order entered by the Special Master on May 9, 2002, with respect to his “interviews” of the Trust Management Improvement Program Steering Committee (the “Protective Order”) and to unseal the transcripts of depositions conducted by the Special Master in accordance with the terms of the Protective Order. Pursuant to Local Civil Rule 7.1(m), the undersigned counsel for the Defendants conferred with Plaintiffs' counsel, Mr. Dennis Gingold, on March 31, 2004, regarding this motion, and Mr. Gingold stated that this motion would not be opposed by Plaintiffs.1 During the period of May 10, 2002, through July 23, 2002, inclusive, the Special Master 1 In confirming that Plaintiffs would not oppose this motion, Mr. Gingold asked whether Defendants’ counsel would agree to undertake a mutual review of the exhibits utilized by the Special Master during the depositions to determine the extent to which those documents needed to remain protected from public disclosure. The undersigned Defendants’ counsel advised Mr. Gingold that Defendants’ counsel were willing to pursue such an undertaking with Plaintiffs’ counsel. - 1 - conducted depositions of numerous individuals with regard to the security of the Interior Department’s Information Technology (“IT”) systems. Prior to commencement of these depositions, the Special Master entered the Protective Order, a copy of which is attached as Attachment A. Protective Order (May 9, 2002) (Balaran, S.M.). Although the Protective Order stated in its opening paragraph that it was issued in connection with the Special Master’s plan to “interview members of the Trust Management Improvement Program Steering Committee,” the Special Master utilized it in connection with the previously referenced depositions – not interviews – conducted during the period of May 10, 2002, through July 23, 2002. Moreover, the depositions conducted by the Special Master included numerous deponents who were not members of the Trust Management Improvement Program Steering Committee. Prior to the commencement of the depositions, the Special Master advised the undersigned Defendants’ counsel that the principal purpose of the Protective Order was to ensure that future deponents would not have access to transcripts of previously taken depositions and to restrict counsels’ ability to discuss the substance or content of depositions with future deponents. As a result, the Protective Order restricted dissemination of transcripts to a limited group of individuals. Protective Order ¶ 1. In addition, the Protective Order prohibited the disclosure of the content of the depositions, “in form or in substance,” to any person not included within the limited group of authorized distributees. Protective Order ¶ 4. As the Special Master’s Report to the Court for August 2002 confirmed, by late summer, the Special Master had concluded taking the depositions covered by the Protective Order and had begun drafting a report setting forth his findings. August 2002 Report of Special Master, at 2 - 2 - (Aug. 30, 2002) (Dkt. No. 1470) (“As detailed in my invoice, attached hereto, I expended the vast majority of my time during the month investigating Interior’s Information Technology systems and drafting a report reflecting my findings.”). Consequently, by a letter dated August 23, 2002, Defendants’ counsel requested that the Special Master “vacate the protective order that precludes public access to the deposition transcripts.” Attachment B (Letter from S. Spooner to Special Master (Aug. 23, 2002)). Six days letter, Defendants’ counsel repeated this request, noting that Defendants’ counsel “[had] reviewed the transcripts of the TMIP Steering Committee depositions taken by [the Special Master] from May 10, 2002, through July 23, 2002, inclusive, and [had] concluded that nothing in the transcripts requires protection from public disclosure.” Attachment C (Letter from J. Warshawsky to Special Master (Aug. 29, 2002)). In spite of the fact that the Special Master’s depositions were concluded well over a year ago, to date, the Special Master has declined to lift his Protective Order or to unseal the transcripts of the depositions that he took during the period of May 10, 2002, through July 23, 2002. Indeed, despite requests from Defendants’ counsel, the Special Master has never issued his report based upon those depositions. See Attachment D (Letter from J. Warshawsky to Special Master (Jan. 2, 2003)); Attachment E (Letter from S. Spooner to Special Master (Feb. 23, 2003)). This is in spite of the fact that the Special Master stated in his October 2002 Report to the Court: I concluded my investigation into the IT security practices of the Department of the Interior with the deposition of former Assistant Secretary for Indian Affairs Kevin Gover. My final report on this topic will soon issue. October 2002 Report of Special Master, at 2 (Nov. 1, 2002) (Dkt. No. 1590) (emphasis added). - 3 - Insofar as the Special Master’s depositions have been completed for approximately oneand- a-half years, now, the Special Master has no arguable interest in continuing to preserve the confidentiality of what he has asked deponents. Moreover, as Defendants’ counsel have confirmed based upon their review of the transcripts, Defendants are not aware of any material in the transcripts requiring protection from public disclosure. Finally, the unnecessarily protected nature of the transcripts apparently has caused plaintiffs to file a brief in the U.S. Court of Appeals for the District of Columbia under seal because the brief references some of the testimony taken by the Special Master. Combined Opposition to Appellants’ Emergency Motion for Stay Pending Appeal and Plaintiffs-Appellees’ Motion to Vacate This Court’s Adminstrative Stay, No. 04-5984 (Mar. 29, 2004) (filed under seal). Under these circumstances, there is no justifiable ground either for continuing in place the Special Master’s May 9, 2002 Protective Order or for barring public disclosure of the Special Master’s deposition transcripts. Conclusion For the foregoing reasons, Defendants respectfully request that this Court grant this unopposed motion and enter an Order lifting the Protective Order entered by the Special Master on May 9, 2002 and unseal for public disclosure the transcripts of depositions conducted by the Special Master in accordance with the terms of the Protective Order. Respectfully submitted, ROBERT McCALLUM, JR. Associate Attorney General PETER D. KEISLER Assistant Attorney General - 4 - STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director /s/ John Warshawsky _________________________________________ SANDRA P. SPOONER Deputy Director 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 (202) 514-7194 March 31, 2004 - 5 - CERTIFICATE OF SERVICE I hereby certify that, on March 31, 2004 the foregoing Defendants' Unopposed Motion to Lift Special Master’s May 9, 2002 Protective Order and to Unseal Deposition Transcripts Taken by Special Master 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) ELOUISE PEPION COBELL, et al., ) Plaintiffs, v. GALE NORTON, Secretary of the Interior, et al., ) Defendants. ) ) __________________________________________) This matter comes before the Court on the Defendants' Unopposed Motion to Lift Special Master’s May 9, 2002 Protective Order and to Unseal Deposition Transcripts Taken by Special Master, Dkt No. ________. Upon consideration of the Unopposed Motion, any Response thereto, the applicable law and the entire record of this case, the Court finds the Defendants’ Unopposed Motion to Lift Special Master’s May 9, 2002 Protective Order and to Unseal Deposition Transcripts Taken by Special Master should be and is hereby GRANTED. SO ORDERED Date:______________ Case No. 1:96CV01285 (Judge Lamberth) ) ) ) ) ) ORDER ___________________________________ Hon. Royce C. Lamberth UNITED STATES DISTRICT JUDGE United States District Court for the District of Columbia cc: Sandra P. Spooner John T. Stemplewicz 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. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 Fax (202) 318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 (406) 338-7530