IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLLrMBIA C L [ i:': i i ELOUISE PEPION COBELL, et al_._., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Special Master-Monitor GALE A. NORTON, Secretary of the Interior, et al.,) Joseph S. Kieffer, III) ) Defendants. ) ) DEFENDANTS' MOTION FOR PROTECTIVE ORDER The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior Defendants" or "Interior"), pursuant to Fed.R.Civ. P. 26(c), hereby move that a protective order be entered to prevent the depositions of certain government officials, namely Donna Erwin and Bert Edwards. Donna Erwin is the Acting Special Trustee and Bert Edwards is the Director of the Office of Historical Trust Accounting. Pursuant to the Court's September 17, 2002 order which appointed the Special Master-Monitor, this motion is submitted to Mr. Kieffer for his report and recommendation regarding this discovery dispute. See Order dated September 17, 2002 at paragraph numbered 8. In support, Interior Defendants state: On September 17, 2002, the Court directed Interior Defendants to file two plans on January 6, 2003. See Order filed September 17, 2002 at III, _ 2 and 3. The Court also authorized discovery by Plaintiffs provided that it shall "not unreasonably interfere with the defendants' ability to develop their plans for submission to the Court." Id___. at _} 16. On December 9, 2002, Plaintiffs served notices for the depositions of Ms. Erwin and Mr. Edwards. As discussed in the supporting memorandum filed with this motion, Ms. Erwin and Mr. Edwards are key participants, with important central roles and responsibilities, in Interior's efforts to formulate and provide the plans due to the Court on January 6, 2003. Through great effort, Interior has accomplished much work on the plans yet still has a significant amount remaining. To require Interior to be without their services for the time necessary for them to be deposed (including the time necessary to prepare) unreasonably interferes with and unfairly prejudices Interior's ability to provide the plans on January 6, 2003. Counsel for Interior Defendants conferred with counsel for Plaintiffs, Keith Harper, about this motion, and Mr. Harper stated that Plaintiffs oppose this motion. Dated: December 11, 2002 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director ""'SANDRA P. SPOONIER U Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney TERRY M. PETRIE Trial Attorney D.C. Bar Number 454795 Commercial Litigation Branch Civil Division United States Department of Justice P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 307-0183 -2- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al__=., ) ) Plaintiffs, ) ) v. ) CaseNo. 1:96CV01285 ) (Special Master-Monitor GALE A. NORTON, Secretary of the Interior, et al.,) Joseph S. Kieffer, III) ) Defendants. ) ) DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Plaintiffs seek to depose Bert Edwards, the Director of the Office of Historical Trust Accounting, on December 16, 2002, and Donna Erwin, Acting Special Trustee, on December 20, 2002. Both are Department of Interior employees who are critical to Interior Defendants' ability to file timely two court-ordered plans on January 6, 2003. For good cause, as explained below, Plaintiffs should be precluded from deposing Mr. Edwards and Ms. Erwin until aRer January 6, 2003. Background On September 17, 2002, the Court directed Interior Defendants to file two plans on January 6, 2003. See Order filed September 17, 2002 at III, _12 and 3. One plan was to describe how the Department plans to conduct a historical accounting of the IIM trust accounts. Id.__:. at HI, 2. The second plan was to describe how the Department plans to bring itself into compliance with the fiduciary obligations that they owe to the IIM beneficiaries. Id__=. at IH, _ 3. Further, the Court specified that the second plan shall describe, in detail, the standards by which the Department intends to administer the IIM trust accounts, and how the proposed actions would bring the Department into compliance with those standards. Id.___. Also on September 17, 2002, the Court authorized discovery by Plaintiffs provided that it shall "not unreasonably interfere with the defendants' ability to develop their plans for submission to the Court." Id_.=. at III, _I 16. The Department of Interior has summoned and expended an extraordinary amount of effort, and has undertaken much of the work necessary to provide the plans ordered by the Court. Declaration by J. Steven Griles, Ex. 1 at _'_[ 6-7. However, much work remains to be accomplished before January 6, 2003. Id_..:. at _ 7. Mr. Edwards, the Director of the Office of Historical Trust Accounting, and Ms. Erwin, the Acting Special Trustee, are critical, key participants in Interior's efforts to provide the plans on time. Id..._:. at _ 6. Both play central roles with important responsibilities in the formulation of the plans. Id_._:. at 'll'_ 6-7. Each also possesses important knowledge and experience necessary to Interior's formulation of these plans. Id. at _ 6-7. On November 22, 2002, at the initiative of the Defendants, Plaintiffs were asked to provide the names of those individuals they would desire to depose before January 6, 2003. Letter dated November 22, 2002 from Terry M. Petrie to Keith M. Harper, Ex. 2. Plaintiffs were specifically advised that if they did not provide by November 27, 2002, the names of those they wanted to depose before the plans were submitted to the Court, that it would be understood "to mean that [Plaintiffs] do not desire to depose any other' government witnesses until after January By this time, Plaintiffs had already deposed Messrs. J. Steven Griles, James Cason, and Ross Swimmer. -2- 6, 2003." Id__. Despite Defendants' specific request, Plaintiffs provided no names by November 27, 2002. On December 3, 2002, at the instigation of the Special Master-Monitor, Plaintiffs were again asked to provide the names of those individuals they wished to depose prior to January 6, 2003. See Letter dated December 4, 2002 from Keith M. Harper to Sandra Spooner, Ex. 3. The next day, December 4, and two weeks after they were requested to provide the same information by Defendants, the Plaintiffs indicated that they wished to depose Ms. Erwin and Mr. Edwards, as well as a Rule 30(b)(6) corporate deposition of Electronic Data Systems ("EDS"), before January 6. Ex. 3. In short, even though authorized as of September 17, 2002, Plaintiffs inexplicably waited until December 4, approximately 22 working days before the plans are to be submitted to the Court, to advise Defendants that they intended to depose two key Department of Interior employees before January 6, 2003 On December 6, 2002, in response to Plaintiffs' December 4 letter, Defendants advised Plaintiffs that "the duties of Ms. Erwin and Mr. Edwards with respect to the plans will prevent them from being available for deposition until after January 6, 2003." Letter dated December 6, 2002 from Terry M. Petrie to Keith M. Harper, Ex. 4 at page 2. Plaintiffs were further informed that: These witnesses have significant involvement in the preparation of the two plans. To require them to be deposed now, before January 6, will unfairly and directly prejudice Interior's ability to develop and complete the plans with the full complement of abilities and knowledge these witnesses possess. Id_.__. Notwithstanding, on December 9, 2002, Plaintiffs served notices for the depositions of Ms. Erwin and Mr. Edwards, as well as the Rule 30(b)(6) corporate deposition of EDS. Letter dated December 9, 2002 from Keith M. Harper to Terry M. Petrie and Michael J. Quinn, Ex. 5. In response to the notices of Ms. Erwin and Mr. Edwards, we have filed this motion for a protective order precluding Plaintiffs from deposing either one of them until after January 6, 2003.2 Argument Defendants have amply demonstrated good cause for why Ms. Erwin and Mr. Edwards should not be deposed until after January 6, 2003. See. Fed. R.Civ.P. 26(c). Both individuals are crucial participants in Interior's efforts to comply with the Court's September 17, 2002 order and file important plans with the Court on January 6, 2003. Each possesses important knowledge and experience that needs to be employed in the formulation and coordination of the plans. And each has critical responsibilities in that effort. In short, as recognized by the Special Master-Monitor, both are "key" Interior employees with respect to the preparation of the January 6 plans. Letter dated December 9, 2002 from Special Master-Monitor Joseph S. Kieffer, 1TI to the parties, Ex. 6 at page 2. Plaintiffs cannot reasonably dispute this fact. The Court has explicitly recognized the importance of the January 6 plans and the need for Interior to bring its full efforts to bear in preparing those plans. In its September 17, 2002 order, the Court expressly stated that discovery taken by Plaintiffs shall "not unreasonably interfere with the defendants' ability to develop their plans for submission to the Court." Id..:. at 2 At this time, we are checking with EDS about its ability to produce a witness in response to the Rule 30(b)(6) notice served by Plaintiffs. We agree with the Special Master- Monitor that it would be preferable to come to an agreement on these depositions without the need to involve the Court (see Special Master-Monitor letter dated December 9, 2002 to the parties, Ex. 6 at page 2 fn. 3), however Plaintiffs insist on taking now the depositions of Interior employees critical to the Defendants' ongoing ability to provide timely plans on January 6, 2003. -4- To allow the depositions to go forward as noticed unreasonably interferes with Interior's ability to develop and complete the plans. Without any explanation, and while authorized since September 17, 2002, Plaintiffs have elected to wait and now want to depose Mr. Edwards and Ms. Erwin on dates when there will be approximately 13 and 9 working days left, respectively before the plans are due to the Court on January 6, 2003. Plaintiffs are too late. Mr. Griles, the Deputy Secretary of Interior, who has overall aufhority and responsibility within the Department for Indian trust reform, has assessed and determined that (a) there is much work remaining to be accomplished on the plans, (b) both Ms. Erwin and Mr. Edwards are indispensable to the remaining effort by virtue of the roles and the responsibilities they have in the creation of these plans and the knowledge and experience they possess, and (c) it is imperative to the Department's abilities to fully and successfully complete the plans on time that Mr. Edwards and Ms. Erwin not have their efforts distracted by the necessary time it would take to prepare them for depositions as well as the time spent in deposition. Ex. 1 at _ 7. Conclusion For the foregoing reasons, Defendants respectfully request that the Court enter an order precluding Plaintiffs from deposing Mr. Edwards and Ms. Erwin until after January 6, 2003. Dated: December _/.Z, 2002 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director -5- SANDRA P. SPOONER -_ Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney TERRY M. PETRIE Trial Attorney D.C. Bar Number 454795 Commercial Litigation Branch Civil Division United States Department of'Justice P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 307-0183 -6- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) CaseNo. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) ORDER This matter coming before the Court on Defendants' MotiOn for Protective Order, any ' responses thereto, and the record in this case, the Court finds that the motion should be granted. IT IS THEREFORE ORDERED that the Plaintiffs are precluded from deposing Department of Interior employees Donna Erwin and Bert Edwards until after January 6, 2003. SO ORDERED this __ day of ,2002. ROYCE C. LAMBERTH United States District Judge CC: Sandra P. Spooner John T. Stemplewicz Comrnercial 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, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 -2- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) CaseNo. 1:96CV01285 ) (Special Master-Monitor GALE A. NORTON, Secretary of the Interior, et al.,) Joseph S. Kieffer, III) ) Defendants. ) ) DECLARATION OF a. STEVEN GRILES 1. I am J. Steven Griles, the Deputy Secretary, United States Department of the Interior. In that capacity, I serve as the Chief Operating Officer of the Department. 2. As part of my official duties and responsibilities, I have overall authority and responsibility within the Department for Indian trust reform. 3. On September 17, 2002, the Court directed Interior Defendants to file two plans on January 6, 2003. One plan was to describe how the Department plans to conduct a historical accounting of the IIM trust accounts. The second plan was to describe how the Department plans to bring itself into compliance with the fiduciary obligations that they owe to the IIM beneficiaries. Further, the Court specified that the second plan shall describe, in detail, the standards by which the Department intends to administer the IIM trust accounts, and how the proposed actions would bring the Department into compliance with those standards. -1- EXHIBIT 1 Defs' Memorandum ill Support of Motion for Protective Order 4. Bert Edwards is the Director of the Department's Office of Historical Trust Accounting. As such, he has been working on the first plan; that is, how the Department plans to conduct a historical accounting of the IIM trust accounts. I have been informed that Plaintiffs have noticed a deposition for Mr. Edwards to begin on December 16, 2002, and to continue day-to-day until completed. 5. Donna Erwin is the Acting Special Trustee. As such, she has been working on the second plan and is involved in a review of the historical accounting plan that the Court has ordered to be filed on January 6, 2003. I have been informed that Plaintiffs have noticed a deposition for Ms. Erwin to begin on December 20, 2002, and to continue day-to-day until completed. 6. I am personally familiar with the Department's efforts to provide the plans ordered by the Court on September I7, 2002. I am also personally familiar with the efforts by Mr. Edwards and Ms. Erwin to assist the Department in providing those plans. The efforts to provide these plans, in the time permitted, has been extraordinary, requiring great amounts of time and effort by many people. Mr. Edwards and Ms. Erwin are critical, key participants and play a central role in our ability to fully and completely meet our obligation by January 6, 2003. 7. The Department has not completed either plan at this time. Through great effort much work has been undertaken, however, much remains to be accomplished in the time remaining between now and January 6. Mr. Edwards and Ms. Erwin are indispensable to the remaining effort by virtue of the roles and the responsibilities they have in the creation of these plans and the knowledge and exper/ence they -2- possess. It is imperative to the Department's abilities to fully and successfully complete the plans on time that Mr. Edwards and Ms. Erwin not have their efforts distracted by the necessary time it would take to prepare them for depositions as well as the time spent in deposition. ! declare under penalty of perjury that the foregoing is true and correct. Date: '_c::c:' ///'_00_ j._)n'_le_ _-_3_ -3- j_ U.S. Department of Justice CMl Division Postal Service Address Street Address P.O. Box 875 Ben Franklin Station 1100 L Street, N.W.-Room 10146 Washington, D.C. 20044-0875 Washington, D.C. 20005 Tero, /ri. Petrie - Trial Artorn