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Cobell v. Norton

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 17, 2002

ELOUISE PEPION COBELL, ET AL., PLAINTIFFS,
v.
GALE NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Interior's Motion for Modification of the Protective Order Entered on March 29, 2000 [605], plaintiffs' Cross Motion to Vacate the March 29, 2000 Protective Order and for Further Sanctions, the memoranda filed in support of and in opposition to the motions, and the Special Master's Report and Recommendation Concerning Defendant Interior's Motion For Modification of the Protective Order Entered on March 29, 2000 and Plaintiffs' Cross Motion to Vacate the March 29, 2000 Protective Order and For Further Sanctions ("Report and Recommendation") (as well as Interior's objections thereto). Interior has moved to modify the Court's March 29, 2000 Protective Order which, based on provisions of the Trade Secrets Act, 18 U.S.C. § 1905, and the Indian Minerals Development Act ("IMDA"), 25 U.S.C. § 2103, directs the production of and provides protection for certain documents produced in response to Paragraph 19 of the Court's November 27, 1996 Production Order. Interior seeks to expand the terms of the Protective Order to reach all documents produced in response to formal discovery requests that fall under the same provisions and to provide a mechanism for designating the confidentiality of these records. Plaintiffs have cross-moved to vacate the March 29, 2000 Protective Order and to impose sanctions on defendant and its counsel.

Upon consideration of the parties' submissions, the applicable law, and the record herein, and for the reasons set out more fully in the Report and Recommendation of the Special Master (which the Court hereby adopts except as provided herein), it is hereby

ORDERED that defendant's Motion for Modification of the March 29, 2000 Protective Order is GRANTED with respect to the provision concerning release of materials covered by the Trade Secrets Act; and is otherwise held in abeyance pending compliance with the remaining provisions of this Order. It is further

ORDERED that within 30 days of the date of this Order, defendant Interior shall review a representative sample of the documents it intends to produce to determine whether protected individual mineral records are contained therein and report to the Court with a copy to the Special Master the results of its review. Notwithstanding Interior's objection to the Special Master's Report and Recommendation in this regard, the Court finds that the Special Master correctly determined that such an endeavor should be undertaken before determining whether to issue a protective order covering the release of all such documents. Consistent with this conclusion, however, it is further

ORDERED that if Interior is willing to stipulate that such a representative sampling would not reveal any protected individual mineral records (Interior has already "acknowledged that it is unlikely that any individual IMDA information exists within the collection of documents being offered for on-site inspection"), then it does not need to conduct the sampling ordered above. It is further

ORDERED that within 30 days of the date of this Order, defendant Interior shall review a representative sample of the documents it intends to produce to determine whether protected tribal mineral records are contained therein and report to the Court with a copy to the Special Master the results of its review. Although defendant objects to the thirty day deadline, the Court finds that Interior has now had ample opportunity to complete the review that it began in May of 2001. See Objections to Report and Recommendation at 13 ("Interior does not object to gathering further information in accordance with the recommendation of the Special Master. Interior has already begun to develop its sample of the document collection by directing each of the twelve Bureau of Indian Affairs regional offices to identify the number of IMDA agreements in existence in their region and to provide a representative example of such an IMDA agreement."). It is further

ORDERED that the Court declines to adopt the portion of the Special Master's Report and Recommendation ordering defendant Interior to contact affected tribes to determine whether they will voluntarily waive any privilege they may hold under IMDA. While the Court does not necessarily agree with defendants' contention that such an order would be unduly burdensome, it finds that, in light of the above rulings, it is not needed to resolve defendants' motion. It is further

ORDERED that plaintiffs' Motion for Sanctions is DENIED without prejudice to refiling; it is further

ORDERED that plaintiffs' Motion to Vacate the March 29, 2000 Protective Order is DENIED without prejudice to refiling.

SO ORDERED.

20020917

© 2002 VersusLaw Inc.



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