Ij (, r-,1 ..... _,_ U'" ,. . · . ,, , IN THE UNITED STATES DISTRICT COURT 3i P 'i 7:13 FOR THE DISTRICT OF COLUMBIA ': ' ?7 ELOUISE PEPION COBELL et al._._., ) gL _. ;,', ) No. 1:96CV01285 (RCL) Plaintiffs, ) v. ) ) GALE A. NORTON, Secretary of ) the Interior, et al_=., ) ) Defendants. ) ) DEFENDANTS' RESPONSE AND OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE SPECIAL MASTER-MONITOR ON SEQUESTRATION OF WITNESSES FOR PHASE 1.5 TRIAL DISCOVERY DEPOSITIONS i The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Defendants") hereby submit their response and objections to the Report And Recommendation Of The Special Master-Monitor On Sequestration Of Witnesses For Phase 1.5 Trial Discovery Depositions ("Report" or "R&R"), filed on December 16, 2002. The Special Master-Monitor has recommended that the Court enter an order providing as follows: ORDERED, that Deputy' Secretary' J. Steven Griles, Associate Deputy Secretary James Cason, and Director of the Office of Indian Trust Transition Ross Swimmer shall not discuss the substance of their depositions with any person, including each other but excluding counsel, until the completion of their and all other depositions of government fact witnesses, and it is FURTHER ORDERED, that the Griles, Cason and Swimmer deposition transcripts be placed under seal pending completion of all depositions of government fact witnesses. Proposed Order (filed Dec. 16, 2002). The recommended order must be refused because the record is devoid of the requisite "good cause" necessary for entry of a protective order under Federal Rule of Civil Procedure 26(c).1 The Report recommends entry of the above protective order based on the patently flawed position that no "good cause" showing is required. Plaintiffs have made no showing of good cause, nor does the Report identify any good cause supporting the particular sequestration language found in the proposed order. The Report instead relies entirely on the unsupported assertion that "[w]hatever the law regarding the authority of a court or parties to require the sequestration of witnesses to depositions as oppose[d] to trials, those laws and proccdurcs do not prevent agreements to be reached between parties concerning such sequestration or allow those agreements, authorized by a court or special master, to be broken on the whim of one party." Report at 24 (original emphasis). The stated premise is fatally defective, for it not only misinterprets the relevant facts but relies on a fimdamentally erroneous application of the law. As demonstrated below, there has been no breach of any so-called "agreement" on sequestration. No good cause exists to perpetuate sequestration of any witnesses, and Plaintiffs have failed to show, nor can they show, any prejudice whatsoevcr if the recommended order is not adopted. The act of "sequestering" witnesses, especially in the deposition context, is strongly disfavored. A sequestration order, as the name implies, does not merely affect counsel or actual litigants. It imposes additional, significant and onerous obligations on individual VThe Report also recommends against assessment of any sanctions against Dcfcndants in connection with the sequestration issue. Det_ndants agrce with this limited part of the Special Master-Monitor's recommendation fbr the reasons stated in his Report and for the additional reasons that sanctions are should be deemed moot bccausc no ordcr of sequestration of deposition witnesses is warranted or has ever been granted. 2 nonparties concerning what they may discuss and with whom, all under a threat of contempt for its violation. It is therefore axiomatic that the obligation of"sequestration" may come only in the form of a protective order duly entered by the Court pursuant to its authority under Federal Rule 26(c) to govern the conduct of discovery. Rule 26(c), in mm, requires that such discovery orders be based upon an express finding of good cause, which is unmistakably absent here. The essential background facts relevant to the issue of sequestration are not in serious dispute. On September 17, 2002, the Court ordered that Defendants submit by January 6, 2003 a plan for "conducting a historical accounting of the IIM trust accounts" and a plan for "bringing themselves into compliance with the fiduciary obligations that they owe to the IlM beneficiaries. Order, Sept. 17, 2002, at 3. The Court also authorized discovery to be taken prior to a trial on the merits of the plans, set for May 2003. At a discovery conference held by the Special Master-Monitor on October 3, 2002, Plaintiffs requested certain modifications to the Federal Rules. One modification Plaintiffs sought was "sequestration" of three witnesses, J. Steven Griles, James Cason and Ross Swimmer, each of whom is an official of the Department of the Interior involved in work on the plans ordered by the Court. Discovery Tr. at 229 (Oct. 3, 2002) [Excerpts from the Oct. 3, 2002 transcript are appended as Exhibit 1 ].2 Defendants agreed only to consider such a proposal, and -*Although the Report recommends a protective order limited to three witnesses, the Report suggests -- incorrectly- that the parties had agreed to sequestration that was "open-ended" in scope. See Report at 28. The facts prove otherwise. The record cited in the main text above clearly reveals that the only "sequestration" being debated involved upcoming depositions of three witnesses, Messrs. Griles, Cason and Swimmer. Tile Special Master-Monitor expressly acknowledged this limited scope itl subsequent correspondence on the subject. See Letter fi'om Special Master-Monitor Kieffcr to counsel, dated October 14, 2002 at 4 ("All three dcponents would be subject to a sequestration order to be agreed to by the parties to prevent their talking to each other about their individual depositions.") (emphasis added) (citing thc Discovery 3 the Special Master-Monitor directed Plaintiffs to submit a proposed form of sequestration. Id__. at 230. The matter was discussed again during a second discovery conference on October 18, 2002. The Special Master-Monitor described a general understanding on "sequestration" with respect to the depositions of Messrs. Griles, Cason and Swimmer to be held during the month of November. MR. KIEFFER: Here's what he [Defendants' counsel] is going to do. There is going to be a deposition with Cason. Cason can talk to his counsel. Cason can't talk to Griles or anyone about that deposition. The counsel may [or may] not be the same counsel that Cason spoke to that then preps Swimmer in his deposition. In that prep, they can talk about a whole range of subjects, but they will not indicate that any particular subject was discussed at the deposition. And in that range, thc subject is going to be larger than what was in that deposition, so there is going to be no knowledge on the part of Mr. Swimmer that the subjects they are prepping him on are just the subjects that were discussed in the deposition. Discovery Conference Tr. at 19-20 (Oct. 18, 2002) [Excerpts from the Oct. 18, 2002 transcript are appended as Exhibit 2]. The full terms of "sequestration," however, were never specified and were not thereafter reduced to a formal written protective order. The Special Master- Monitor noted his anticipation that the "three deponents would be subject to a sequestration order to be agreed to by the parties to prevent their talking to each other about their individual depositions." Letter from Special Master-Monitor Kieffer to counsel, dated October 14, 2002 at 4 (emphasis added) [copy appended as Exhibit 3] (citing Discovery Conference Tr. at 229-230 (Oct. 3, 2002)). No protective order, however, was proposed, considered or adopted by thc Special IVlastcr-Monitor or entered by the Cotll-t Oll tile subject of sequestration. [.ikewise, the Conference Tr. at 229-230 (Oct. 3, 2002)). 4 Court made no independent determination that "good cause" existed for a protective order on sequestration. 3 During November, Plaintiffs took depositions of Messrs. Griles, Cason and Swimmer. Initially, Plaintiffs asked for each of these witnesses to be produced for three days of deposition in November, with the possibility that these witnesses might be deposed again in January 2003, following the filing of the Defendants' plans with the Court. The Special Master-Monitor summarized as follows: MR. KIEFFER: Let's take three days now and see what's left over. I would rule that they have the right to take them again after the plan. But there's so much that they have to do with them, let's see how fast they finish thefirst three days. And I'll be there. I'm going to come to these depositions to make sure they progress fairly but rapidly. Then we'll address that issue later on. Discovery Conference Tr. at 197 (Oct. 3, 2002) (emphasis added). As things proceeded, however, Plaintiffs took only one full day of deposition for each witness during November 2002. Although no proposed form of protective order embodying the parties' discussions on sequestration had been presented, debated, or submitted to the Court, the Defendants permitted the three depositions of Messrs. Griles, Cason and Swimmer to go forward. The witnesses were "sequestered" throughout these depositions. Ovcr the course of these depositions and the continuing confusion about the extent and meaning of sequestration, it became apparent to Defendants that the idea of sequestration was far more complicated than first perceived. Without a clearly delineated order in place, the _The Report and Recommendation now at issue marks tile first time a proposed protective order oil sequestering deposition witnesses has bccn presented. 5 parties differed over when any "sequestration" obligation should end, see generally Telephonic Discovery Conference Tr. at 32 (Nov. 13, 2002) [excerpt appended as Exhibit 4], whether the practice of sequestration should be extended to other witnesses, and whether use of sequestration made any sense at all when other witnesses (and the general public) could freely read transcripts of"sequestered" witnesses' testimony, see generally Deposition of James Cason at 304, 311-13 (Nov. 7, 2002) (discussion among counsel and the Special Master-Monitor about extcnsion to other witnesses and public availability of transcripts) [excerpt appended as Exhibit 5]. Defendants ultimately concluded that the progress of discovery would be hindered, not helped, by further accommodation of Plaintiffs' request for sequestration. Therefore, at2er the three witnesses were deposed, Defendants duly notified Plaintiffs in writing that they did not intend further "sequestration" of these witnesses. Letter from Sandra P. Spooner to Keith M. Harper, dated November 25, 2002 [copy appended as Exhibit 6]. Upon receiving this notice Plaintiffs complained and the Special Master-Monitor asked Defendants to maintain the "status quo"- that is, that the three witnesses remain "sequestered" - until the issue could be resolved. Thus, at this time, there has been no change in the status of the three witnesses in question. ARGUMENT A. Sequestration Of Discovery Deponents Is Not Favored The entire idea of"sequestering" witnesses is tbreign to deposition discovery. The notion of"sequestering" a deposition witness is founded on an ill-advised extension of an umvHtlen expansion of a rule of evidence employed at trials. At trial, Rulc of Evidence 615 attthorizes a court to order trial witnesses excluded from the courtroom "so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion." Fed. R. Evid. 615 (emphasis added). This rule, by its own terms, does not attthorize the type of restrictions Plaintiffs want to impose on Interior Department officials. It is silent about preventing witnesses from speaking to others; its only express prohibition merely prevents them from sitting in court and listening to other testimony. Thus, Rule 615 cannot be a basis for the broad "gag" order that the Special Master-Monitor has recommended. Moreover, Rule of Evidence 615 simply does not apply to deposition discovery and cannot be a basis for authorizing restrictions on discovery deponents. Rule 30(c) of the Federal Rules of Civil Procedure, which governs the conduct of depositions, expressly provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at trial under the provisions of the Federal Rules of Evidence except Rules 103 [concerning the making of objections] and 615 [regarding the exclusion of witnesses]." Fed. R. Civ. P. 30(c) (emphasis added). The Advisory Committee notes to the 1993 amendments to this rule state that the "revision [adding an exception to Rule 615] provides that other witnesses are not automatically excluded from a deposition simply by the request ora party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate." Fed. R. Civ. P. 30(c) advisory committee note. Such restrictions in depositions are disfavored. In Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998), the Court refused to impose witness restrictions that were far less onerous than the "gag" order recommended here by the Special Master-Monitor. In Alexander, the plaintiffs sought only to keep certain potential witnesses from sitting in on the deposition of other witnesses; the plaintiffs there were not seeking to "gag" witnesses, as Plaintiffs are here. Nevertheless, the Court, denied the motion, discussing Rule 615 as follows: Finally, plaintiffs request that this court prohibit Sally Paxton, Special Associate Counsel to the President, and David Cohen, attorney for Craig Livingstone, from appearing at any further depositions in this case. Plaintiffs make this request pursuant to Rule 615 of the Federal Rules of Evidence. Rule 615 states in relevant part that "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses ..." Fed. R. Evid. 615. Plaintiffs contend that Paxton and Cohen are material witnesses in this case and therefore, these individuals should be excluded from future depositions. PlaintifJ_' reliance on Rule 615 is misplaced. Rule 30(c)ofthe Federal Rules of Civil Procedure governs the conduct of depositions and states that "[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615." Fed. R. Civ. P. 30(c). The Advisory Committee notes to Rule 30(c) add that "It]he revision provides that other witnesses are not automatically excluded from a deposition simply by the request ora party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate." Id. (Advisory Committee Notes for Rule30(c), 1993 Amendments). Rule 26(c)(5) permits the court to enter a protective order ordering "that discovery, be conducted with no one present except persons designated by the court." Fed. R. Civ. P. 26(c)(5). 186 F.R.D. at 53 (emphasis added). The decision in Alexander makes clear that Rule of Evidence 615 does not govern depositions; such issues are to be determined pursuant to Fed. R. Civ. P. 26(c). Rule 26(c), however, only comes into play upon a "motion by a party.., and for good cause shown." Fed. R. Civ. P. 26(c) (emphasis added). No motion for a protective order regarding sequestration was ever filed with either the Special Master-Monitor or the Court. More important, n_.o_o showing of good cause has been made and n__Q evidence of any "good cause" exists in the record. No basis, therefore, exists tbr the Court to adopt the Special Master- Monitor's recommended order. The Report's recommendation rests entircly on the flawed proposition that "good cause" need not exist to support a formal order of sequestration, if the parties agree in any shape, manner or form - no matter how tentatively, indefinitely or preliminarily - to sequestration. This bald assertion is plainly wrong, and the report cites no precedent for a Rule 26(c) order absent a finding of "good cause." The Report readily concedes that "[t]hcre was no written agreement finalized by the parties regarding the sequestration agreement," Report at 35, which necessarily means that no binding order regarding sequestration exists. The Report's recommendation instead seeks justification on the tenuous basis that "defendants' counsel abided by thc terms of the [nonfinalized] oral agreement and plaintiffs' counsel relied upon it through the first day of the depositions of each of the three-named deponents. ''4 Id. Past practice and unspecified "reliance" are not adequate bases for finding "good cause" for entry of a protective order under Rule 26(c). B. Specific Findings Of"Good Cause" Are An Essential Prerequisite For A Protective Order, But No Good Cause Exists Here 1. There Must Be A Specific Finding Of Good Cause The reasoning advanced in the Report ignores thc plain prerequisite for proper entry of a protective order. Courts have held that even when parties have agreed to a protective order under Rule 26(c), and even when such stipulated orders are entered by the court, those orders are not enforceable unless: (1) the party seeking protection under the order has demonstrated "good cause" for the restriction and (2) the Court has made an independent determination that good cause exists warranting enforcement. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227-228 (6th Cir. 1996) ("good cause" determination needed even when protective The Report also asserts that the Special Master-Monitor "relied" on the so-called sequestration arrangement in "regulating" discovery. Rcport at 35, n. 6. The stated reliance is not supported, and nowhere is there mention of any impact that sequestration had on the conduct of discovery. 9 order terms are stipulated); FTC v. Digital Interactive Associates, 1996 WL 912156, at *3 (D. Colo. 1996)Ccourt in determining whether or not to enforce a confidentiality agreement which has not been entered by the court as a protective order [must consider] whether the party seeking to enforce its provisions can demonstrate 'good cause' for doing so under Fed. R. Civ. P. 26(c)") (denying enforcement). Neither condition is satisfied here. Other courts in similar circumstances have held that it is error even to enter a stiptdated protective order absent an independent determination that "good cause" exists for the order. Jepson, Inc. v. Makita Elec. Works, 30 F.3d 854, 858-59 (7th Cir. 1994) (overturning sanctions for violation of stipulated protective order where no "good cause" determination was made by magistrate); cf. United States v. Kentucky Utils. Co., 124 F.R.D. 146 (E.D. Ky. 1989), rev'd on other _ounds, 927 F.2d 252 (6th Cir. 1991) (stipulated confidentiality orders should not be given binding effect even if they are entered by the court; court should balance thc interests between privacy and public access at the time the motion to modify a protective order is made). The Report unsuccessfully attempts to distinguish this entire line of precedent by implying that parties can "stipulate" to the sequestration of deposition witnesses under Rule 29 and that the cases requiring a specific good cause finding under Rule 26(c) are limited to cases involving confidentiality orders. Sec Rcport at 32 ("here no public body is seeking these depositions' release"), 37 n. 8. These distinctions, however, make no difference. By its very nature, an order of sequestration -just like a confidentiality order- is fundamentally different from and wholly unlike other discovery matters on which litigants may stipulate. For example, the Report cites a case in which there was agreement between litigants about what subjects may be probed, see Report at 38 (citing Alexander v FBI, 186 F.R.D. 144, 10 147 (D.D.C. 1999), and a case involving the issue of where depositions may be held, see Report at 36-37 (citing In Re Vitamins Antitrust Litigation, 2001 U.S. Dist. Lexis 24025 (D.D.C. 2001)), but such matters involve simple case administration or housekeeping that have no real import beyond the litigants themselves. Such simple matters can be resolved under Rule 29 because they do not require anyone's conduct beyond counsel or the immediate parties to be compelled. A sequestration or "gag" order on the other hand -just like a confidentiality order for documents - is substantively different. It imposes material limitations and restrictions reaching beyond the parties themselves to witnesses, nonparties and potentially others as well. Parties may not by themselves simply "agree" to subject witnesses and other nonpartics to a continuing admonition restricting their freedom of speech without the Court also determining independently that "good cause" exists to impose such a restriction. 5 2. Perfunctory Presumptions Of"Good Cause" Are Insufficient No evidence of "good cause" exists here. In submissions to the Special Master-Monitor, Plaintiffs sole argument regarding "good cause" was a wholly unsubstantiated assertion that with sequestration "plaintiffs have been more willing to delve into certain subject matters with less fear that testimony would be orchestrated or manipulated." See Report at 28 (quoting a letter from Plaintiffs' counsel). No testimony is cited. No "sensitive" questions are identified. Plaintiffs make no proffer of how their discovery would be adversely affected - nothing. Even the Report, although at one point postulating that this unspecified "fear" poses "irreparable 2"Indeed, because tile proposed order recommended by the Report would place deposition transcripts under seal, it is a rnatter, of confidentiality indisputably falling under Rule 26(c), even according to the analysis in thc Special Master-Monitor's Report. Thus, good cause is an absent but essential prerequisite. I1 harm" to Plainti frs, see id., ultimately concedes that Plaintiffs have done no more than "allude[] to that reliance" on sequestration. Report at 32. "Allusion" does not constitute proof, and unspecified and unsubstantiated "fear" does not constitute good cause. When considering a much more limited request for the exclusion of certain material witnesses in Alexander v. FBI, this Court refused to prohibit certain witnesses from attending others' depositions because "[p]laintiffs have failed to identify any compelling or extraordinary circumstances warranting the exclusion of these witnesses from future depositions? 186 F.R.D. at 53. Here, by contrast, no circumstances exist beyond mere speculation based on allusions to an unsubstantiated fear. Such a perfunctory showing does not satisfy Rule 26(c). This rule provides in pertinent part(s): Upon motion by a party or by the person from whom discovery is sought,...for good cause shown, the court in which the action is pending.., may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or t_ndue burden or expense, including one or more of the following: , , . (5) that discovery be conducted with no one present except persons designated by the court .... Fed. R. Civ. P. 26(c) (emphasis added). Before an order can be properly entered under Rule 26(c), there must be proof of specific "annoyance, embarrassment, opprcssion, or undue burden or expense" that requires intervention. The Report does not even address these factors, and no _Plaintiffs contended before thc special Master-Monitor that Alexander's language requiring "compelling or extraordinary circumstances" applies only when one seeks to exclude named parties. However, the witnesses mentioned in Alexander - two attonleys -- do not appear to have been named "parties" any more than the Departmcnt o f the Interior officials who are targets of the recommended order here. Nevertheless, there has been no showing of any basis at all in this case for the far more burdensome sequestration recommended in thc Report. 12 evidence of good cause exists in the record. To the contrary, Plaintiffs have done no more than insinuate generally that Defendants (and, by implication, their employees) cannot be trusted. Generic, boilerplate claims are plainly insufficient. Courts require specific facts that establish serious, well-founded concern that coercion or collusion will, in fact, occur absent restrictions. "Rule 26(c)'s requirement of a showing of good cause to support the issuance of a protective order indicatcs that '[t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration offact as distinguished from stereotyped and conelusory statements.'" In re Terra Int'l, Inc., 134 F.3d 302, 306 (Sth Cir. 1998) (.per curium) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)) (emphasis added). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987); Tuszkiewicz v. Allen Bradley Co., 170 F.R.D. 15, 16-17 (E.D. Wisc. 1996) (protective order denied where there were no "distinct facts that would lead thc court to conclude that the witnesses cmmot be trusted to tell the truth or that their attending each other's depositions will otherwise affect their testimony"); see also 8 C. Wright & R. Marcus, FEDERAL PRACTICE AND PROCEDURE §2035 (1994) ("The courts have insisted on a particular and specific demonstration of fact, as distinguished ti'om stereotyped and conclusory allegations."). C. The Report And Recommendation Also Ignores The Substantial Public Policy And Practical Concerns Militating AGainst Sequestration Several substantial reasons exist for setting the threshold for wimess restrictions so high. First, Federal Rule of Civil Procedure 30, by its own tenns, does not contemplate such restrictions as a matter of course. Without a specific showing ofreal harm, almost every 13 deposition could qualify for some kind of witness restriction. In one case, the Fifth Circuit granted mandamus in order to vacate a district court's sequestration order. In re Terra Int'l, 134 F.3d at 306-07. The order was based on a "conclusory allegation that a substantial majority of the fact witnesses.., are employees of Terra [a party] and that they will therefore be subject to Terra's influence and will be inclined to protect each other through a sense of'camaraderie."' Id. at 306. The court held that no good cause for sequestration existed and "[t]o conclude otherwise would indicate that good cause exists for granting a protective order any time fact witnesses in a case are employed by the same employer or are employed by a party in the case." Id. The court noted that such a low threshold would be "inconsistent with this court's admonition that a district court may not grant a protective order solely on the basis of'stereo.typed and conclusory statements.'" Id.; see also Jones v. Circle K Stores, Inc., 185 F.R.D. 223,224 (M.D.N.C. 1999) (denying protective order where facts alleged did not appear "as being anything more than ordinary garden variety or boilerplate 'good cause' facts which will exist in most litigation") (quoting BCI Comm. Sys., Inc. v. Bell Atlanticom Sys., Inc., 112 F.R.D. 154, 160 (N.D. Ala. 1986)); Tuszkiewicz, 170 F.R.D. at 17 (protective order sought because witnesses were employees ora party did not prove "good cause"; to grant the order "would surely mandate the same result in all cases in which there was more than one fact witness on an issue and where the movant alleges that prejudice could result"). Second, the process of deposition discovery is such that restrictions on witnesses are wholly unnecessary. Opposing parties can explore at length thc contacts one witness has had with another, tile transcripts or documents a witness reviewed before being deposcd, whether tim witness discussed previous depositions with other witnesses, and what the content and purpose 14 of those discussions were. Ail of these avenues are open to examination and permit the examiner to ferret out collusion or, more innocently, a polluted recollection based on conversations with others. By contrast, a "gag" on deposition witnesses is no guarantee against collusion or pollution (both can still take place prior to the first deposition) and promises no real improvement over effective deposition questioning. ? Third, a "gag" restriction places onerous burdens on witnesses and other litigants that should be avoided absent the presence of truly exceptional circumstances. See Conrad v. Board of Corem'rs, No. 00-207, 2001 WL 1155298, at *2 (D. Kan. Sept. 17, 2001) ("Sequestration of deponents should be the exception rather than the rule."). The sequestration sought in this case would require three top officials of thc Department of the hlterior - the Deputy Secretary, the Associate Deputy Secretary and the Director of the Office of Indian Trust Transition - to conscientiously refrain from mentioning anything relating to their deposition questioning or testimony for as long as another four months, until discovery closcs. These three officials are presently working day to day on matters of trust reform, which involves topics inextricably tied to the subjects covered in deposition. These gentlemen must also communicate and converse with one another so that the plans ordered by the Court can be timely submitted on January 6, 2003 and the matter readied for trial. These circumstances place an enormous - and wholly lmnecessary - burden on these witnesses to watch every word they say, so that some trivial revelation or recollection of some deposition moment is not unthinkingly spoken. All the effort required to abide such a restriction is of no real value any way. The 7;Indeed, another material defect in the Report is the notcd absence of any principled detemlination that thcse ordinary "checks" on the deposition process - used in every other case - are somehow inadequate here. 15 transcripts of these depositions were never under seal, so any other employee at the Department of the Interior or any member of the public has been free to read the verbatim testimony of Messrs. Griles, Cason and Swimmer, even though these witnesses have been told not to discuss their own testimony. This circumstance alone demonstrates that Plaintiffs suffer no "detriment" by the absence of further sequestration. 8 These officials should not be subjected to such a long, drawn out duty when they need to be free to put all their energy into trust reform efforts and trial preparation. As one court observed in the context of a criminal trial, "[i]t is somewhat unrealistic to expect policemen, agents, experts and witnesses who have known each other for years and who have worked together in preparing a case to sit for hours together in a witness room or a hall without carrying on some conversation." .United States v. Scharstein, 531 F. Supp. 460, 464 (E.D. Ky. 1982) (denying new trial based on court's refusal to issue a "gag" order for witnesses). Indeed, sequestration in this circumstance would also burden the court, by plunging it into a "myriad of enforcement problems and a plethora of collateral issues," id., where no real need exists in the first instance. Finally, such restrictions could, if imposed, deny Defendants fundamental fairness. By unnecessarily restricting how Defendants can prcpare their witnesses and investigate the case in '_'The Report seeks to close the door after the horse has left by placing the transcripts under seal, but this recommendation is also flawed, for no good cause has been asserted and the parties did not stipulate to sealing these depositions. Placing the transcripts under seal would also interfere with Defendants' ability to prepare for trial, such as through consultation with outside experts regarding the testimony. 16 preparation for trial, a sequestration order can run afoul of the Constitution. As at least one court explains: In the view of this court, absolute adherence to the more stringent view [i.e., ordering witnesses not to discuss their testimony] involves such practical difficulties as to be for the most part unworkable. In any hard-fought case the parties adjust and revise their strategies as the trial proceeds. As the Supreme Court of the United States has pointed out: "It is common practice during such (overnight) recesses for an accused and counsel to discuss the events of the day's trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without lawyer's guidance." [Quoting Geders v. United States, 425 U.S. 80, 88 (1976).] It is also common practice and an essential part of trying a case for the trial attorney to confer with his experts and other prospective witnesses during such recesses, as well as before trial. It has been held that to deprive a party, even a corporate party in a civil case, of the right to consult with counsel as the trial proceeds is to infi'inge its right to due process of law. This court believes that similar considerations apply to the right of a party to have his counsel free to discuss with prospective witnessex developments in the case, including the testimony of other witnesses. If counsel can relate to a witness what another witness has said, it would seem to be an exercise in futility for the court to try to prohibit one witness from talking to another about the case outside the courtroom. Although the United States in a criminal prosecution may not technically have a right to due process of law, this court believes that fairness requires that it be afforded the same latitude in the interpretation of Rule 6 l 5 that duc process would afford a corporate defendant. Scharstein, 531 F. Supp. at 463-64 (cmphasis added) (footnotes omitted). No less concern exists here. 17 CONCLUSION For the foregoing reasons, the referenced Report and Recommendation of the Special Master-Monitor should not be adopted to the extent it recommends entry of a protective order sequestering any deposition witnesses or placing any transcripts under seal. Dated: December 31, 2002 Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director Deputy Director D.C. Bar No. 261495 JOHN T. STEMPLEWICZ Senior Trial Counsel MICHAEL J. QUINN Thai Attorney D.C. Bar 401376 Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 18 CERTIFICATE OF SERVICE I declare under penalty of perjury that, on December 3 I, 2002 [ served the foregoing Defendants'Response and Objections to the Report and Recommendation of the Special Master- Monitor on Sequestration of Witnesses for Phase 1.5 Trial Discovery Depositions by facsimile in accordance with their written request of October 31,2001 upon: Kcith 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 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Spccial Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 By Hand upon: Joseph S. Kieffer, III Special Master Monitor 420 7 ch Street, N.W. Apartment 705 Washington, D.C. 20004 (202) 478-1958 Y/9 i .? ._ _ / J'¢) , __ Kevin P. King'_ton' '",,_ - ' ?