US Department of Justice Court Proceedings - 10202005 motion

8/14/2019 US Department of Justice Court Proceedings - 10202005 motion

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1 This discussion was in part a meet and confer on this motion, whichP!aintiffs' counse!stated P!aintiffs wou!d oppose.


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has no significant expertise in IT security that would make him an appropriatewitness on that

subject.

Pursuant to Fed. R. Civ. P. 26(c), Defendants respecffiilly request thatthe Court enter a

protective order precluding the proposed deposition from taking place. This motionis an effort

to provide for efficient management of discovery, by addressing potentialconflicts and

narrowing the issues now, rather than dealing with such issues after thedeposition has begun.

Mr. Hatfield should not be required to fly to Washington, D.C. from New Mexico andprepare to

answer questions on a subject that Plaintiffs may have no intention of covering,or to face

questions that relate to mailers either outside the permissible scope of discoveryor outside the

scope of this litigation.

I. PLAINTIFFS ARE NOT ENTITLED TO BROAD-BASED DISCOVERY WHILEAPPEALS ARE PENDING.

With Defendants' appeal of the Court's structural injunction, and the stayof that

injunction, Plaintiffs' discovery rights are necessarily limited. The Court setforth the limitations

under these circumstances in September 2004:

Generally, a party's filing of a notice of appeal divests the districtcourt of

jurisdiction over the mailers being appealed. See Griggs v. ProvidentConsumer

Discount Co., 459 U.S. 56, 58 (1982). However, the district court retainsjurisdiction during the pendency of the appeal to preserve the status quo.

Newton

v. Consolidated Gas Co., 258 U.S. 165, 177 (1922). The structuralinjunction

issued by the Court was of significant scope and length. Cobell, 283 F.Supp. 2d

at 287-295. Its stay leaves much of this case on hold until the appeal iscompleted. However, the Court retains the power to preserve the status quo

andthe Court's Order that "information regarding the IIM trust [bel properly

securedand maintained," Order dated Sept. 17, 2002 at II. 1, is an order that

goes


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toward preserving the status quo. Plaintiffs' discovery must becircumscribed by

the restrictions on the Court's jurisdiction and is limited to discovery onwhether

information regarding the IIM trust is properly secured and maintained.Specifically, until resolution of the pending appeal of the Court's

structuralinjunction, the scope of plaintiffs' discovery must be limited to

individual Indiantrust record retention and preservation and the agency's policies and

practices toensure that individual Indian trust records are properly retained and

preserved.

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Order of September 2, 2004 at 2-3 [Dkt. No. 26631.2 Subsequently, this Courtreiterated and

clarified the scope of permissible discovery:

As the plaintiffs' only "live" claim here is that the defendants havebreached their

duty to render an accounting of the Indian trust, the scope of discoveryincludes

only those matters directly related to the defendants' accountinginfrastructure--

that is, those systems and processes, either in place or deficient and inneed of

reform, that constitute the defendants' capacity to render a completeaccounting of

the trust assets and the transactions involving those assets during theexistence of

the trust.

Cobell v. Norton, 226 F.R.D. 67, 77 (D.D.C. 2005). As an appraiser, Mr. Hatfield's

responsibilities do not focus on "the accounting infrastructure" necessary to anaccounting.

Therefore, he is not an appropriate witness for discovery that is currentlypermitted.

II. PLAINTIFFS ARE NOT ENTITLED TO EXPLORE ASSET MANAGEMENTISSUES.

Regardless of the limited scope of Plaintiffs' discovery pending appeal,Plaintiffs are not

entitled to explore asset management issues, which include the conduct ofappraisals of

individual Indian interests inland. In its lengthy memorandum opinion of February8, 2005, the

Court repeatedly instructed that the only "live" claim in this litigation isPlaintiffs' statutory

claim for an accounting; thus, the scope of discovery is limited to this statutoryclaim for an

accounting. See Cobell, 226 F.R.D. at 76-8 1. Moreover, in limiting the scope of

the Anson

Baker deposition, this Court specifically forbade discovery into how Interiorperformed

appraisals, permitting questioning related only to the creation, retention andpreservation of

documents relevant to an historical accounting. See Id.


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2!Dn February 8, 2005, the Court vacated another order also issued onSeptember 2, 2004[Dkt. No. 26621, which contained precisely the same language as that quoted here,because theappeal of the structural injunction had been decided and thus the limitations ondiscovery wereno longer applicable. Order of February 8, 2005 at 1; see also Cobell v. Norton,226 F.R.D. 67,

73 n.2 (D.D.C. 2005). Of course, the situation in this case has now returned towhere it was onSeptember 2, 2004, with the Court's structural injunction again on appeal andstayed.

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"[Aisset management is not part of this lawsuit." Id at 82. This Courtfurther specified

how Plaintiffs could and could not question witnesses:

To generalize the operative distinction, discovery is permissible as to thecontent-independent processes by which individual Indian trust documents and

records are created, handled, stored, moved from place to place, and soforth; and

discovery is not permissible as to the processes by which document contentitself

is selected and created. It follows that questions related to the adequacyand

security of physical and electronic document storage facilities, computerdata

backup systems, and the like will be permissible. In contrast, questionsconcerning the standards that govern decisions about what kinds of

information toprovide to trust beneficiaries related to leasing mineral rights, for

example, are

beyond the scope of permissible discovery in this matter.

Id. at 83. Plaintiffs are thus restricted from gathering discovery about assetmanagement issues

or other issues unrelated to an accounting. Good cause exists to exclude suchissues from this

noticed deposition of Mr. Haffield, who, as an appraiser, has no direct role toplay in the

historical accounting, IT security, or records management.

A protective order is particularly important given Plaintiffs' past failureto abide by this

Court's protective order limiting the scope of the Baker deposition. See Cobell v.Norton, 226

F.R.D. at 83-88 (denying Plaintiffs' motion to compel answers to depositionquestions objected

to by Defendants on ground that questions exceeded scope permitted by Cobell v.Norton, 220

F.R.D. 106, 108-109 (D.D.C. 2004)). In permitting Plaintiffs to depose Baker, the

Court

circumscribed the subject matter to two general areas: "first, the impact ofBaker's actions on the

administration of the trust, and second, the professed ignorance of at least onesenior Interior

official of the Court's long-standing directives to properly retain, safeguard andprotect


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individual Indian trust information." 220 F.R.D. at 108-109. Nevertheless,Plaintiffs asked

questions beyond the permitted scope, which resulted in Defendants' counselinstructing Mr.

Baker not to answer and in Plaintiffs' unsuccessful effort to compel thoseanswers. 226 F.R.D.

at 83-86. Here, Plaintiffs have offered no indication that they are taking Mr.Haffield's

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deposition to address areas of discovery permitted by this Court: administrationof the trust or

retaining, safeguarding and protecting individual Indian trust information.Furthermore, Mr.

Haffield' s position as an appraiser makes him an unlikely and inappropriate

witness on IT

security issues. Plaintiffs have not alleged otherwise.

III. PLAINTIFFS ARE PRECLUDED FROM CONDUCTING DISCOVERY INCONNECTION WITH ANY POTENTIAL CIVIL OR CRIMINAL CONTEMPTPROCEEDINGS.

Given the areas of discovery that are precluded from discovery as shownabove, the only

conceivable purpose for Plaintiffs' proposed deposition of Mr. Haffield would beto develop

evidence for a show cause motion seeking civil or criminal contempt sanctionsbased upon the

May 21, 1999 "anti-retaliation" order. !, ! Plaint4ffs 'Motion for an Order toShow Cause

Why Secretary Norton, W. Hord Tipton and Other Interior Employees Should Not BeHeld in

Civil and Criminal Contempt of Court for Violating This Court's Anti-RetaliationOrder (July

26, 2005).! Developing evidence for contempt sanctions is inappropriate wherethere is not

even an allegation of contemptible action by Mr. Haffield. Massachusetts UnionofPublic

Housing Tenants v. Pierce, 1983 WL 150 at *4 (D.D.C.) ("Before being permitted totake

extensive discovery on the issue of compliance with a court's order, the partyseeking such

discovery bears the burden of making a prima facie case that there has in fact

been disobedience

of the order.") (citing Central Soya Co. v. Geo. A. Hormel& Co., 515 F. Supp. 798,799 (W.D.

Okla. 1980)); Wesley Jessen Corp. v. Bausch & Lomb, Inc., 256 F. Supp. 2d 228,229(D. Del.

Should Plaintiffs bring such a motion, it could have criminal implicationsfor Mr.


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2003). Accordingly, the Court should enter a protective order precluding adeposition relating to

potential contempt allegations.4

CONCLUSION

For all the foregoing reasons, Defendants request that the Court grant theirmotion for a

protective order quashing Plaintiffs' September 30, 2005 notice of deposition ofRobert Haffield.

A proposed order is attached.

DATED: October 20, 2005 Respecffiilly submitted,ROBERT D. McCALLUM, JR.Associate Attorney GeneralPETER D. KEISLER

Assistant Attorney GeneralSTUART E. SCHIFFERDeputy Assistant Attorney GeneralJ. CHRISTOPHER KOHNDir ector

/s/ Robert E. Kirschman, Jr.ROBERT E. KIRSCHMAN, Jr.(D.C. Bar No. 406635)Assistant DirectorJOHN R.KRESSETrial AttorneyCommercial Litigation Branch

Civil DivisionMailing Address:P.O. Box 875

4lndeed, the Supreme Court has recognized that it is often appropriate for adistrict courtto impose a protective order "to prevent parties from using civil discovery toevade restrictionson discovery in criminal cases." Degen v. United States, 517 U.S. 820, 826 (1996)(citingcases); see also United States v. Kordel, 397 U.S. 1, 8-9 (1970) (presuming thatappropriate

remedy in a civil case where no corporate officer could respond to interrogatorieswithout beingsubject to a "real and appreciable' risk of self-incrimination" would be aprotective order"postponing civil discovery until termination of the criminal action.") (internalcitationsomitted). Thus, ample authority exists for the imposition of a protective order toprevent civildiscovery from going forward when there are unresolved criminal allegationsarising from thesame matters.


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Ben Franklin StationWashington, D.C. 20044-0875Phone (202) 307-3242Fax (202) 514-9163

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CERTIFICATE OF SERVICE

I hereby certif!y that, on October 20, 2005 the foregoing Defendants 'MotionforProtective Order Quashing Plaint4ffs 'Notice ofDeposition ofRobert Hatfield andSupportingMemorandum ofPoints andAuthorities was served by Electronic Case Filing, and on

thefollowing who is not registered for Electronic Case Filing, by facsimile:

Earl Old Person (Pro se)Blackfeet TribeP.O. Box 850Browning, MT 59417Fax (406) 338-7530

/s/ Kevin P. KingstonKevin P. Kingston


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09; 30; 2005 11:18 FAX 202 822 0068 NARF DC !002

IN THE UNITED STATES DISTRICT COURTFOR TUE DISTRICT OF COLUMBIA

)Elouise Pepion Cobell, er at. )

)Plaintiffs

)) Civil Action No. 96-1286

(RCL))

Gale A. Norton, et aL)

Defendants. )

NOTICE OF DEPOSITION OF ROBERT HATFIELD

To: ROBERTE. KJRSCHMAN. Sr.Assistant DirectorUnited States Department of JusticeCivil DivisionCommercial Litigation Branch1100 L Street, NW, Room i000S\Vashington, D.C. 20005

PLEASE TAKE NOTICE, that on October 21, 2005, at the offices of

plaintiffs'

counsel, Kilpatrick Stockton, LLP, 607 14! St., NW.. 9! floor, Washington,D.C. 20005,

plaintiffs in this action will take the deposition of Robert Hatfield,Departrneifl of Interior,

1849 C Street, NW, Washington, DC. This deposition will commence at iOOO a.m.and will

continue on consecutive days thereafter until completed. Testimony will berecorded by

stenographic means.

Dennis M. GingoldDC Bar No, 417748Box#6Washington. DC 20005Telephone: (202) 824-1448

EXHIBIT 1Defendant


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s' Motion for ProtectiveOrder

Quashing Plaintiffs' Notice ofDepositio

n of Robert Hatfield andSupporting

Memorandum of Points

and AuthoritiesPage 1 of 2


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09/30/2005 14:18 FAX 202 822 0068 NARF DC !003

Keith M. HarperDCBarNo. 451956Native American Rights Fund1712 N Street. NW

Washington. DC 20036-2976Telephone: (202) 785-4166

Attorneys for Plaintiffs

Dated: September 30, 2005

EXHIBIT 1

Defendants'Motion for Protective

OrderQuashing Plaintiffs' Notice of

Depositionof Robert Hatfield and

SupportingMemorandum of Points

WLNLL&I I1sc!oo Land AuthoritiesPage 2 of 2


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U.S. Department 0f JusticeCIVIL DIVISION, COMNFRCIA!L U11GATION BRANCh,

Fax:(202) 307-0494

FAX COVER SHEET

IMPORtANt: The information eontaitied in this facstiniie message is itijormationprotected tiy (it/DIM el-c Lent ail/cOr the1//U/I Cl II on p/ odiui piii ikgc it H tntcndeci on/i for tlic oc of the i/ti/tiU/li"! 'atijeci ohm itid i/u /)Htic Ii / ( II /1t iou of ti/IA hai tug hieti cui h! 1w !iinih if the pinch ado lllr 'is tewnc

i/ni fiu "oh it ci a/li ut/Id icaiki of f/it fee S//il//iis n ci the itamed recipient ot- ike enipios ce or agent responsE/i Ic to dc/Evenit to the toned recipient, any i/se, di.vsc,i 'na/inndistribution, on cop iong oft/ic comm tin ira/iou Ls .ctncI1! pro1 ihaed 11 vonhave roe el red iii is '0/n/Il one 'at/Ui, in e/'re I', JilecLSininedrateir no/i/i us by telephone a,,d nc/unii i/ic cii gout! message to us atthe above address via L.! S. Pox/ui 5!rri ice.

Date:

To:Fax No.:

October 14. 2005

Mr. Dennis M. Gingold202-318-2372

NUMBER OF PAGES SENT (INCLUDING COVER SHEET): 2

EXHIBIT 2

Defendants' Motion forProtective

Order Quashing Plaintiffs'Notice of

Deposition of RobertHatfield and

Supporting Memorandum ofPoints


From:Agency:

Address:'lelephone:Fax No.:

John R. KresseUnited States Department of Justice, Civil Division,1100 L Street, N.W., Washington. 1).C. 20005(202) 616-2238(202) 307-0494

Commercial Litigation Branch


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*****!********* -COMM. JOURNAL- ******************* DATE OCT-14-2005 ****! TIME17'02 **'!****

MODE = MEMORY TRPNSMISEION

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ENDOCT-14 1?82

FILE NO.412

SIN NO. COMM. ASER f-fl.

STATION t-RIE'TEL PlO.

PACES DuRAT ION

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93182372

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-003 CORP FIN LIT -

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Deposition of Robeil Hatfieldand



From:Agency:Address:Telephone:Fax No.:

Date: October 14, 2005

To:Fax No.:

Mr. Dennis M. Gin!old202-318-2372



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U.S. Department 0f JusticeCIVIL DIVISION, COMNFRCIA!L U11GATION BRANCh,

Fax:(202) 307-0494

FAX COVER SHEET

IMPORtANt: The information eontaitied in this facstiniie message is itijormationprotected tiy (it/DIM el-c Lent ail/cOr the1//U/I Cl II on p/ odiui piii ikgc it H tntcndeci on/i for tlic oc of the i/ti/tiU/li"! 'atijeci ohm itid i/u /)Htic Ii / ( II /1t iou of ti/IA hai tug hieti cui h! 1w !iinih if the pinch ado lllr 'is tewnc

i/ni fiu "oh it ci a/li ut/Id icaiki of f/it fee S//il//iis n ci the itamed recipient ot- ike enipios ce or agent responsE/i Ic to dc/Evenit to the toned recipient, any i/se, di.vsc,i 'na/inndistribution, on cop iong oft/ic comm tin ira/iou Ls .ctncI1! pro1 ihaed 11 vonhave roe el red iii is '0/n/Il one 'at/Ui, in e/'re I', JilecLSininedrateir no/i/i us by telephone a,,d nc/unii i/ic cii gout! message to us atthe above address via L.! S. Pox/ui 5!rri ice.

Date:

To:Fax No.:

October 14. 2005

Mr. Dennis M. Gingold202-318-2372


EXHIBIT 2



Deposition of RobertHatfield and



From:Agency:

Address:'lelephone:Fax No.:

John R. KresseUnited States Department of Justice, Civil Division,1100 L Street, N.W., Washington. 1).C. 20005(202) 616-2238(202) 307-0494

Commercial Litigation Branch


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U.S. Department of Justice

John It. KresseTrial Attorney

Civil Division

Regular Mail:P.O. Box 875Ben Franklin StationWashington. DC 20044-0875

Express Delivery:1100 L Street, NW.Room 10100Washington, DC 20005Tel.: (202) 616-2238Facsimile: (202) 307-0494E-mail: John.Kresse1iusdoj .gov

By FacsimileDennis NI. Gingold, hsq.607 - 14th Street, NWBox No. 6Washington. DC 20005

October 14. 2005

Re: Cobell v. Norton

Dear Mr. Gingold:

This letter is to confirm Bob Kirschrnan's and my discussion with youyesterday regardingplaintiffs' notice of deposition issued on September 30, 2005. of Robert Hatfieldof the Department ofthe Interior.

We informed you of our intent to file a motion for a protective orderregarding this depositionnotice. Our conversation with you was conducted to satisfy the requirements ofLocal Rule 70). Inaddition, we do not intend to produce Mr. Hatfield pending resolution of ourmotion so that plainiiffsssould not unnecessarily incur the costs of engaging a court reporter. We

understand that you willoppose our motion for protective order.

We asked you what topics you intended to cover in the deposition, given thatMr. Flatfield is anappraiser in the Navajo Region. You declined to provide any inlhrrnation inresponse, other than to saythat the deposition would cover matters that were within the scope of thislitigation. You further pointedout that counsel noticing a deposition have no obligation to provide such


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information. We responded thatit would nevertheless he helpful in this circumstance, because we are aware ofnoissues within the scopeof the litigation for which Mr. Hatfield would he a particularly relevant witness.

Please let us know promptly if you wish to clarify plamtiffs' position onMr. Hatfield's

deposition. Thank you for your attention to this matter.

1Sinc!,rely,

rial AttorneyCommercial Litigation Branch

EXHIBIT 2Defendants' Motion for ProtectiveOrder Quashing Plaintiffs' Notice ofDeposition of Robert Hatfield andSupporting Memorandum of Points



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*****!********* -COMM. JOURNAL- ******************* DATE OCT-14-2005 ****! TIME17'02 **'!****

MODE = MEMORY TRPNSMISEION

sTART!o:T-14 17:01

ENDOCT-14 1?82

FILE NO.412

SIN NO. COMM. ASER f-fl.

STATION t-RIE'TEL PlO.

PACES DuRAT ION

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93182372

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Deposition of Robeil Hatfieldand



From:Agency:Address:Telephone:Fax No.:

Date: October 14, 2005

To:Fax No.:

Mr. Dennis M. Gin!old202-318-2372


Documents

US Department of Justice Court Proceedings - 10202005 motion