1N TttE UNITED STATES DISTRICT COURT FOR THE DISTRICT 0F COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE NORTON, Secretary of the Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO UNSEAL DOCUMENT FILED UNDER SEAL BY COURT MONITOR AND CROSS-MOTION AND MEMORANDUM REGARDING INTERIOR DEFENDANTS' ACCESS TO DOCUMENT FILED UNDER SEAL BY COURT MONITOR The Secretary of the Interior ("Secretary") and the Assistant Secretary - Indian Affairs ("interior Defendants" or "interior") submit this Opposition to Plaintiffs' Motion to Unseal Document Filed Under Seal by Court Monitor CMotion to Unseal"), filed August 12, 2002, and this Cross-Motion and Memorandum Regarding Interior Defendants' Access to Document Filed Under Seal by Court Monitor. I. The Court Should Deny Plaintiffs' Motion to Unseal Attachment C Because Interior Defendants Have Not Had the Opportunity to Receive and Review a Copy of This Document Plaintiffs ask the Court to unseal the document filed by the Court Monitor as Attachment C to the August 8, 2002 Special Report of the Court Monitor on Potential Evidence Regarding the Alleged Suppression by White House and Department of Justice Attorneys of the Written 1 Testimony of the Special Trustee Prepared for the Senate Committee on Indian A.ffairs' July 25, 2002 Hearing Regarding the Department of the Interior's Historical Accounting ("Special Report" or "Report"). Because Interior Defendants do not know what Attachment C is and because the Court Monitor has indicated that claims of attorney/client privilege and/or work- product protection may attach to this document, the Court should deny Plaintiffs' Motion to Unseal, at least until Interior Defendants have receiw:d a copy of Attachment C ',and have had the opportunity to assert any privilege claims that may be applicable. The Special Report files "Attachment C" under seal, stating that it might serve as "potential evidence" in support of an unspecified, future "investigation" or "hearing." According to the Special Report, Attaclmlent C "pertain[is] to Mr. Slonaker's statements surrounding the alleged actions of the White House and Department of Justice attorneys in striking and suppressing the written testimony of the Special Trustee prepared by him for submission to the Senate Committee on Indian Affairs containing his opinions about the DOI's planned historical accounting as addressed in their Report." Special Report at 3. Aside from this statement of the general topic to which Attachment C "pertain[s]," the Special Report provides no infon_nation about the nature and content of this sealed document. The Report explains, however, that Attachment C is filed under seal because it "may support Mr. Slonaker's allegations of the involvement of White House and Department of Justice attorneys in review and suppression of the written testimony of the Special Trustee and, if it does support those allegations of attorney involvement, it may be subject to a claim (whether tenable or not) of attorney/client privilege or confidentiality under the work product doctrine." Id.___. On August 12, 2002, Department of Justice counsel sent a letter to the Court Monitor asking for a copy of Attachment C, so that counsel could "evaluate the evidentiary issues and make an informed decision on whether to respond to the Special Report." Letter from .John T. Stemplewicz, Esq. to Joseph S. Kieffer, III, Esq. at 1 (Aug. 12, 2002) ("Letter from Stemplewicz to Court Monitor") (Ex. 1); see also Department of the Interior's Response to the Special Report of the Court Monitor on Potential Evidence Regarding the Alleged Suppression by White House and Department of Justice Attorneys of the Written Te,;timony of the Special Trustee Prepared for the Senate Committee on Indian Affairs' July 25, 2002 Hearing Regarding the Department of the Interior's Historical Accounting (Aug. 22, 2002) ("Interior Defendants' Response to the Special Report") (discussing this correspondence between Mr. Stemplewicz and the Court Monitor). In requesting a cop,./of the sealed document, counsel for Interior Defendants observed that: (1) the Special Report indicates that Attachment C appears to be a government document, and (2) to the extent this is so, any claim of attorney/client privilege or work-product protection would be for Interior Defendants to assert. For this reason, counsel concluded, "[no] prejudice to such a claim" would arise from providing a copy of Attachment C to Interior Defendants. Letter from Stemplewicz to Court Monitor, at 1 (Ex. 1); see also Interior Defendants' Response to the Special Report, at 3-4. The Court Monitor denied counsel's request fi_r a copy of Attachment C, stating: that he had "transferred the document.., to the Court" and had "not retain[ed] a copy." Letter from Joseph S. Kieffer, III, Esq., to .John T. Stemplewicz, Esq. (May 13 [sic], 2002) ('"Letter from Court Monitor to Stemplewicz") (Ex. 2); see also Interior Defendants' Response to the ',Special Report, at 4. In addition, he emphasized that he had "provided it [Attachment C] to neither party to the Cobell litigation." Letter from Court Monitor 1Lo Stemplewicz" (Ex. 2). Like the Court Monitor himself, Plaintiffs acl, mawledge in their Motion to Unseal that, in his Special Report, "Mr. Kieffer does not disclose the information contained" in Attachment C. Motion to Unseal at 1-2. Remarkably, however, a mere paragraph after making this statement, Plaintiffs go on to identify the type of document that Attachment C is, the person who wrote it, " and the purpose for which it was written. According to Plaintiffs, "the Sealed Document is a report prepared by the Special Trustee (not counsel) in accordance with the Special Trustee's independent, statutory reporting responsibilities to Congress." Id__:. at 3. In sum, Plaintiffs claim to have discovered that Attachment C is (t) a report, (2) prepared by the Special Trustee himself (not counsel), (3) pursuant to his statutory duty to report to Congress. Although Plaintiffs acknowledge that the Court Monitor reported that he did not provide a copy of Attachment C to either party to this litigation, they offer no explanation whatsoever of how they obtained knowledge of this sealed document. As the Court Monitor denied Interior Defendants' request for a copy of Attachment C, and as they lack Plaintiffs' (undisclosed) means of accessing this document, Interior ]Defendants do not know what Attachment C is and have no basis for determining whether they object to the Court's unsealing of the document at this time. Indeed, to this day, the only official infiarmation about Attachment C available to Interior Defendants is that provided in the Special Report itself, and according to the Special Report, claims of attorney/client privilege and work-product protection may attach to this document. Under these circumstances, the Court should deny Plaintiffs' Motion to Unseal, at least until Interior Defendants have received a copy of Attachment C and have had the opportunity to assert ax_y privilege claims that may be applicable. 1 II. Interior Defendants Hereby Move That the Court Provide Them With A Copy of Attachment C and That It Take No Further Action Regarding the Special Report Until Such Time As They Have Received a Copy of Attachment C and Have Had an Opportunity to Assert Any Applicable Privileges Interior Defendant hereby move that the Court provide them with a copy of Attachment C, filed under seal by the Court Monitor in his Special Report, and that the Court take no further action regarding the Special Report (including, but not limited to, unsealing or otherwise distributing Attachment C) until they have received a copy of this sealed document and have had the opportunity to assert any applicable privilege claims. 2 1Plaintiffs argue that Attachment C should be unsealed because it falls within the categories of documents for which, pursuant to the Special Master's Opinion and Order of May 11, 1999, Interior Defendants may not assert claims of attorney/client privilege, work-production protection, and/or deliberative process privilege. Motion to Unseal at 2. They then conclude that because Attachment C is "material to the management and administration of the Individual Indian Trust" and because Interior Defendants are obligated to disclose all such material information, any effort on the part of Interior Defendants to "conceal such information from plaintiffs on its face is unethical." Id.__. at 7. As Interior Defendants have never received a copy of Attachment C-in spite of their efforts to obtain one-they are incapable at this time of assessing the merit of Plaintiffs' argument that any claims of attorney/client privilege, work-product protection, and/or deliberative process privilege would fail. Nor can they now assess whether other privileges, such as a presidential communications privilege and/or a protection arising from the constitutional doctrine of separation of powers would apply. See Defendants;' Motion for Protective Order and To Quash Deposition Subpoenas (Aug. 21, 2002). 2Counsel for Interior Defendants conferred with counsel for Plaintiffs, Dennis M. Gingold, about this Cross-Motion, and Mr. Gingold stated that Plaintiffs oppose it. As noted above, the Special Report states that Attachment C is filed under seal because it "may support Mr. Slonaker's allegations of the involvement of White House and Department of Justice attorneys in review and suppression of the written testimony of the Special Trustee and, if it does support those allegations of attorney involvement, it may be subject to a claim (whether tenable or not) of attorney/client privilege or confidentiality under the work product doctrine." Special Report at 3. In other words, the Special Report states that Attachment C must be filed under seal in order not to prejudice any claims of attorney/client privilege and/or work-product protection arising from the fact that this document concerns activities of White House _md Department of Justice attorneys. As discussed above, the Department of Justice requested a copy of Attacl_rnent C from the Court Monitor, but the Court Monitor denied the request and stated that he gave his; only copy of this document to the Court For this reason, Interior Defendants ask thai: the Court provide them with a copy. Furthermore, because they do not know what Attachment C is-and because Plaintiffs, in contrast, do not appear to share this hindrance-Interior Defendants move that the Court refrain from taking any further action regarding the Special Report (including, but not limited to, unsealing or otherwise distributing Attachment C) until they have received a copy of this sealed document and have had the opportunity to assert any applicable p_ivilege claims. IlL Conclusion Interior Defendants oppose Plaintiffs' Motion to Unseal because they have not had the opportunity to receive and review a copy of Attachment C. Furthermore, they move that the 6 Court provide them with a copy of Attachment C, filled under seal by the Court Monitor in his Special Report, and that it take no further action regarding the Special Report (including, but not limited to, unsealing or otherwise distributing Attachment C) until they have received a copy of this sealed document and have had the opportunity to assert any privilege claims that may be applicable. August 26, 2002 Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy A,ssistant Attorney General J. CHRISTOPHER KOHN Director SPOONER D.C. Bar No. 261495 Deputy D [rector JOHN T. STEMPLEWICZ Senior l?rial Attorney AMALIA D. KESSLER , Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514.-7194 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. ) ) ORDER This matter coming before the Court on Interior Defendants' Cross Motion Regarding Interior Defendants' Access to Document Filed Under oeal by Court Monitor, any responses thereto, and the record in this case, the Court finds that the Cross Motion should be GRANTED. IT IS THEREFORE ORDERED that the clerk of this Court provide Interior Defendants with a copy of Attachment C, filed under seal by the Court Monitor in his Special Report, and that no further action will be taken regarding the Special Report (including, but not limited to, unsealing or otherwise distributing Attachment C) until ten days after Interior Defendants have received a copy of this sealed document. SO ORDERED this __ day of__ ,2002. 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 (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 Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Fax (202) 986-8477 Joseph S. Kieffer, III Court Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 CERTIFICATE OF S ERVICE I declare under penalty' of perjury that, on August 26, 2002 I served the fi)regoing Interior Defendants' Opposition to Plaintiffs' _lotion to Unseal Document Filed under Seal by Court Monitor and Cross-Motion and Memorandum Regarding Interior Defendants' Access to Document Filed Under Seal by Court Monitor by facsimile upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue,, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 "Washington, D.C. 20004 (,202) 318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Copy by Facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 by Hand upon: Joseph S. Kieffer, III Court Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 [_evin P. Kingston /_ U.S. Department of Justice Civil Division Regular Mail: Express Delivery: P.O. Box 875 1100 L Street, N.W. Ben Franklin Station Room 10136 Washington, DC 20044-0875 Washington, DC 20005 John T. Stemplewicz Tel.: (:!02) 307-1104 Facsimile: (202) 305-4932; Senior Trial Counsel August 12, 2002 BY FACSIMILE Joseph S. Kieffer, III, Esq. Court Monitor 420 7th Street, NW, #705 Washington, DC 20004 Re: Cobell v. Norton - Court Monitor's August 8, 2002 Special Report Dear Mr. Kieffer: The Order entered August 8, 2002 allows the parities ten days to comment on or object to the Special Report of the Court Monitor on Evidence Regarding the Alleged Suppression by White House and Department of Justice Attorneys of the Written Testimony of the Special Trustee Prepared for the Senate Committee On Indian Affairs' July 25, 2002 Hearing Regarding the Department of the Interior's Historical Accounting ('"Special Report"). The Special Report indicates that Attachment C _;hereto pertains to statements about the alleged actions of White House and Department of Justi,:e attorneys in regard to written testimony prepared by Mr. Slonaker for submission to the Senate Committee on Indian Affairs. The Special Report further indicates that Attachment (2 is being filed under seal because it may be subject to a claim of attorney/client privilege or confidentiality under the work product doctrine. From the discussion contained in the Special Report, we assume that Attachment C is a government document, and we appreciate the Court Monitor's concern to preserve :any claim of privilege or confidentiality. However, if this assumption is correct, providing a copy of the document to the Defendants, as opposed to the Plaintiffs, would be without prejudice to such a claim and would permit us to evaluate whether submitting comments to the Court on the subject is warranted. Accordingly, this letter requests that you provide a copy of Attachment C by fax to the undersigned to permit us to evaluate the evidentiar3' issues and make an informed decision on whether to respond to the Special Report. Exhibit 1 Interior Def.s' Opposition to Plntf.s' Motion Lo Unseal Doctmaent Filed by Court Monitor and Cross Motion Thank you for your cooperation and assistance. Sincerely, cc: Dennis Gingold (By FAX) Keith Harper (by FAX) Monday, A_gust 12, 2002 5.00 PM p.G2 Joseph S. Kieffc;r, III. 420 7tbStreet, N.W. #705 Washington, D.C. 20004 Office: (202) 208-4078 Facsimile, (202) 248-9543 M[oblle: (202) 321-6022 May 13, 2002 John T. Stemplewicz BY FACS_IILE Senior Trial Coumel Civil Division P.O. Box 875 Ben Fl'arrki/_n Station Washington, D.C. 20044-0_75 Re: Ccb_II et al. v. Norton et al. CNLI Action No. 1:96 CV 01285 (Judge Lamberth) Dear Mr. Stemplewicz: This letter is in response to your l_t_er, dated August 12, 2002, entitled, "Cobell v, Norton - Court Monitor's August 8, 2002 Special Report" k. which you request that I provide you with a copy of the document at Attachment C of the Special Report seat to tte Court. under seaL As I indicated in the Speci_I Report, I have transferred the document from my possession to _he Court. [ have provided k to neither party to _.he CobeE Litigation and did net retain a copy. Thank you for yota" inquiry. Sincfrely yours˘, i \ "4 Cou_ Momtor w 1 I ec: Dennis M. Gingo[d, Esq. (by fan) Keith [-[arper, Esq. (by fax) Exhibit 2 Interior Def.s' Opposidou to Plutl_s' Motion to Unseal Document Filed by Court Monitor aud Cross Motion