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Cobell v. Norton

February 5, 2003


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


This matter comes before the Court on plaintiffs' consolidated motion to compel deposition testimony of Donna Erwin [1698-1] and for sanctions under Rule 37(a)(4)(A) of the Federal Rules of Civil Procedure [1698-2], which was filed on January 2, 2003. Upon consideration of plaintiffs' motions, defendants' opposition thereto, *fn1 and the applicable law in this case, the Court finds that plaintiffs' motions should be granted.


On December 9, 2002, plaintiffs noticed the depositions of Acting Special Trustee Donna Erwin and Office of Historical Accounting Director Bert Edwards. Defendants moved for entry of a protective order by this Court to prevent these depositions from proceeding, and the Court heard oral arguments on defendants' motion on December 13. The Court denied the motion, and ordered the depositions of the two Interior Department officials to proceed. During the hearing, defense counsel represented that Erwin would not be in Washington, D.C. during the week of December 20, when her deposition was scheduled to take place:

MR. QUINN: . . . Ms. Erwin in particular, I would just note, being [in] Albuquerque, and having the deposition noticed for Washington, D.C., although plaintiffs are seeking one day of deposition, that effectively translates, for all practical purposes, into four days away from the office, two days of round-trip travel to here from Albuquerque, at least a day of preparation for her deposition, and then the deposition day itself.

On these additional grounds, Your Honor, we would urge that the Court grant the protective order. Thank you.

THE COURT: In preparation of the plan, will Ms. Erwin not otherwise be in Washington?

MR. QUINN: I'm sorry, Your Honor. My understanding is that she does not expect to be in Washington at all. That's my understanding.

THE COURT: Before January 6th?

MR. QUINN: Well, the point is, in terms of her work in connection with the plan, she would be working from Albuquerque, and after the plan is submitted she would be freed up for deposition.

THE COURT: And neither of them have any plans to take any leave between now and January 6th?

MR. QUINN: . . . Ms. Erwin plans to continue work. My understanding from her is, if - if she can get enough of the plan completed by Christmas day, she would go - take her son to a - some soccer - special soccer recruiting event in Florida until the 30th, and then would return back to the office, and barring - barring the - this is all dependent on how the progress goes on the course of making the plans ready, and in that event she might be working while on the road. As far as I understand, Your Honor, she does not plan to be in Washington, D.C., at all until at least after January 6th.

Transcript of Motions Hearing, Dec. 13, 2002, at 12-14. Based on the representations made by defense counsel, the Court ordered that Erwin's deposition be taken in Albuquerque, New Mexico, where she maintains an office.

However, on December 17, the Court vacated this portion of its order after learning from plaintiffs, during a hearing convened on that date, that Erwin was in fact present in Washington that week to attend a Tribal Task Force Meeting. Defense counsel responded to plaintiffs' assertions that defendants had intentionally misled the Court. Because the representations made by defense counsel lie at the crux of the motions currently pending before the Court, it is necessary to present defense counsel's representations at some length:

MR. PETRIE: . . . At the very most, Your Honor, what we have here is an unintentional, inadvertent misunderstanding between what was represented to you last Friday and what Ms. Erwin's plans were regarding this week which were unbeknownst to us at that time last Friday.

Before I proceed, Your Honor, if I may I would like to - so that you can better understand the facts that led up to the representation that was made to [sic] last Friday, I would like to advise you why Michael Quinn is not here addressing this matter today for two reasons that you need to understand.

First, Michael Quinn appeared on behalf of the United States last Friday because I was personally physically present in Denver, Colorado at the time of the hearing.

Second, and this is very important for your understanding, Mr. Quinn, the representations he made to you on Friday were the representations that I made to him. I want that very clearly understood here, okay?

Here is how Ms. Erwin's availability was determined so that you can get the backdrop to this, Your Honor. On December 4th the plaintiffs, Mr. Harper, sent us a letter indicating that they desired to depose Ms. Erwin and in that letter they indicated the dates of December 12th and 13th. On December 6th, two days later, Friday the 6th, I responded by letter back to Mr. Harper indicating that Ms. Erwin, as well as another deponent they had requested, Mr. Edwards, would not be available.

On the following Monday, December 9th, the plaintiffs then issued noticed depositions for Ms. Erwin as well as Mr. Edwards. The dates were a little bit different, at least specifically regarding Ms. Erwin. Whereas the letter of the 4th of December said the 12th and the 13th, the noticed deposition of the 9th indicated that they wanted to depose her on December 20th.

Two days later, on Wednesday the 11th, we filed a motion for a protective order, and then we've had the hearing this past Friday. So that's the backdrop.

I want to also educate you a little bit about the communications that transpired between myself and Ms. Erwin and Singer, who is sitting there next to Ms. Erwin. Ms. Singer is an attorney from the Solicitor's Office, and she's been detailed to work with Mr. Erwin at this point in time, and she's been present out in Albuquerque where Ms. Erwin's offices are.

Upon receiving the December 4th letter from Mr. Harper, at that point I then called the offices of Ms. Erwin, and is always the case when I attempt to reach Ms. Erwin, she's an extremely busy woman. I mean, even this morning when I went over to Interior she had already was in attendance at a meeting that started at 7:30, and as I commented to her as we ultimately left the Interior building this morning on our way over here, that was quite a feat. I had to arrange for another individual to go to the meeting, interrupt it and extract her because she was late in getting out of the meeting, and we wanted to be here on time. The scene that then unfolded, Your Honor, was very illuminating. I mean, we had one assistant calling on a cell phone for two other people within the building to meet us at the elevators, and then she proceeded to have conversations with those two gentlemen all the way down to the street and into the taxi. She's incredibly busy. I know that last night as I attempted to reach her, as well as Ms. Singer, she was having meetings that started as late as 7:30 last night.

So the result of that is, is that typically when I call for Ms. Erwin and have left her voice mail messages, the person that ends up typically handling the conversation with me is Ms. Singer. Who knows what Ms. Erwin's schedule is.

So after Mr. Harper sent the letter on the 4th of December, I contacted Ms. Erwin's office and spoke with, by my understanding, my recollection, both ladies to ascertain what her availability was and so forth, as well as Mr. Edwards' office, both himself and another attorney from the Solicitor's Office I contacted as well to discuss this with. And as a result of my understanding from those conversations with them, before we filed the letter in response to Mr. Harper on the 6th, I came away with an understanding as to how busy she was and what her schedule was going to require her to do to be able to meet her role, her responsibilities in the plans that are due to the Court on January 6th.

Since that point in time, that initial contact which occurred with them, I have had, through last Friday, the 13th, conversations with that office every day, usually multiple conversations. The point to those conversations were several-fold. One, to keep Ms. Erwin apprised of what was happening in what was at that point a fairly fast-moving train regarding whether or not she was going to be deposed on the 20th, which culminated in the hearing on the 13th. Many times we left voice mail messages, and that included over the weekend of the 7th and 8th as well. The reason for that is, as I said, precisely that. My understanding, as an officer of the Court, from my conversations with Ms. Erwin and Ms. Singer was that she is extremely tied up in meetings every day, and, frankly, there was no indication that she was going to be traveling this week.

Now, obviously, the news that Mr. Gingold shared with you a minute ago about how she came to be in D.C. was a news - was news to [me] yesterday when I heard it. My understanding since, having spoken with Ms. Singer and briefly with Ms. Erwin because, again, yesterday true to form she was tied up in meetings from early - well, actually, she flew in from Albuquerque yesterday and so forth. My understanding about how she came to be here is that a tribal task force meeting was scheduled. At the time it was scheduled it was her intention to attend that meeting which started yesterday and is to conclude today; that she made plans to travel, and then the information came about the noticed deposition on the 20th; that her outlook at that point was that she was going to wait and see what came out of the hearing last Friday. If the Court was going to require her to be deposed in Washington, D.C. on the 20th, then my understanding is that she would then not attend the tribal task force meetings starting yesterday and today with a caveat. My understanding is that the Secretary wanted her to attend, and she would have to necessarily coordinate with the Secretary if in fact she was ultimately not going to attend the tribal task force meeting. But her understanding at that point was that as of Friday, this past Friday, was that if the deposition of herself was to occur in Washington, D.C. on the 20th, then she was not going to attend the tribal task force meetings starting yesterday, continuing through today. The reason for that is a judgment call on her part because of all the multiple balls that she has in the air now trying to get these plans ready and presented to the Court on January 6th, and if she was to be deposed in Washington, D.C. on the 20th, then she did not want to be out of the office for the entire week because there are meetings that started this past Monday on an important subject matter that's part of the plans and -

THE COURT: If those true facts as you now state them had been disclosed to me, there's no question I could have set her date for deposition for Wednesday, or for Tuesday, or for some other day. Those facts were not disclosed to me.

MR. PETRIE: Fully agree, Your Honor, and the point I am trying to respectfully convey to you is that I was not aware of that until yesterday morning when the news arrived that she was in fact here in Washington, D.C., and then attempted to -

THE COURT: And notice to you came from the plaintiffs, not from your client?

MR. PETRIE: The news that she was here in Washington, D.C. came via Mr. Harper.

THE COURT: Isn't that astonishing?

MR. PETRIE: Your Honor, on one level -

THE COURT: And troubling to the Court. Transcript of Motions Hearing, Dec. 17, 2002, at 5-11. The Court then inquired of defense counsel whether the scenario he had just described represented a deliberate attempt to mislead the Court:

MR. PETRIE: No, it is not, Your Honor.

THE COURT: Why not?

MR. PETRIE: It is not -

THE COURT: She knew she was going to come to Washington and go back to Albuquerque, and she let you and Mr. Quinn make contrary representations to the Court.

MR. PETRIE: Your Honor -

THE COURT: How could that not be a deliberate attempt to deceive the Court?

MR. PETRIE: Your Honor, I respectfully disagree because my understanding from Ms. Erwin and Ms. Singer is that it really was not the focus of their understanding of what was transpiring in court; rather their focus, their understanding was the notion of whether or not she was to be deposed before January 6th. So the dialogue as they understand it between themselves and myself was focused upon how busy she was, conveying to myself how busy she was day in, day out, the lengths she was having to do, meetings starting at 6 o'clock in the morning and so forth. Id. at 12-13.

But the Court was informed that prior to the December 13 hearing, Erwin had, in fact, made reservations to come to Washington, D.C. on December 16:

THE COURT: When did she make this airline reservation? When are the tickets dated?

MR. PETRIE: May I ask Ms. Erwin?

THE COURT: Before Friday, I'm sure.

MS. ERWIN: They were made before Friday, and we told everyone, me and my secretary, to put them on hold until we knew where we were going ...

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