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COBELL v. NORTON

March 3, 2003

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



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

ORDER

This matter comes before the Court on motions by two non-parties, the National Congress of American Indians (NCAI) and the Quapaw Tribe of Oklahoma, for leave to file amici curiae briefs in the instant case. This Court has recently stated that "[a]n amicus curiae, defined as "friend of the court," . . . does not represent the parties but participates only for the benefit of the Court. Accordingly, it is solely within the discretion of the Court to determine the fact, extent, and manner of participation by the amicus." United States v. Microsoft Corp., 2002 WL 319366 at *2 (D.D.C. 2002) (citing Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1064 (7th Cir. 1997)). In this context, the Seventh Circuit has opined that
[a]n amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.

Ryan, 125 F.3d at 1063.

The Court has concluded that the amicus brief submitted by the National Congress of American Indians may be helpful and of interest to the Court in the instant litigation. Although NCAI acknowledges that it is "speaking not for individual Indians but for tribes," it nevertheless persuasively argues that
[i]t should be of interest to the Court, as it considers the individual claims, to be aware of the Tribes' interest in (1) the Government's handling of tribal trust funds which are in many cases the same kind of trust fund accounts as the ones owned by plaintiffs in the Cobell case (even being called by the same name — "IIM accounts"); (2) the Government's handling of trust land and natural resources owned by individual Indians, which, the tribes argue, must be handled consistent with tribal law and applicable federal laws, even when that reduces the income from the trust account; and (3) the Government's handling of trust land and natural resources where the land is owned by both individuals and as a tribe as tenants in common, or where individual and tribal land is jointly managed and leased.
NCAI's Reply Br. at 2. The Court is certainly cognizant that this is a case concerning individual Indian money accounts, not accounts owned by American Indian tribes. Nevertheless, given the broad nature of the relief at issue in Phase 1.5 of this litigation, it does not seem unreasonable for the Court to consider the potential impact that such relief might have on American Indian tribes. Additionally, NCAI notes that although its interests frequently coincide with the interests of the plaintiffs in this litigation, there nevertheless exists the "potential for some disagreement between tribes and the individual plaintiffs" concerning defendants' management of trust land and natural resources. Id. at 3. Therefore, despite defendants' characterization of the NCAI amicus brief as "nothing more than a proxy brief filed by a Plaintiffs-amicus-interest group," it is does not appear to the Court that the amicus brief of NCAI would simply repeat the arguments presented by plaintiffs. Defs.' Opp. B.R. at 8 n. 3. The Court is mindful of defendants' argument that "[t]he parties to this suit have plenty of pleadings from their opponents to respond to, and should not have to divert their focus from the case in chief to respond to an amicus brief." Id. at 10. However, defendants also represent that "the Department of Justice is litigating numerous cases brought by Indian tribes in various courts around the country." Id. at 3. Given the fact that there is probably some overlap between the issues raised in these cases and the issues raised in NCAI's amicus brief, and that defendants are free to file motions for extensions of time to file responsive briefs, the Court concludes that it would not constitute an undue burden on defendants to respond to the NCAI amicus brief. Accordingly, the Court will grant NCAI's motion for leave to file its amicus brief.
On the other hand, the Court does not believe the filing of an amicus brief by the Quapaw Tribe would necessarily prove helpful to the Court in the instant litigation. First, given that both defendants and plaintiffs have submitted motions opposing the Quapaw Tribe's motion for leave to file, the Court would be overriding the express objections of both parties if it were to grant the Quapaw Tribe's motion. Second, the interests of the tribe are already fully represented because it has filed an independent civil action against defendants. Third, unlike the NCAI, which represents the interests of over 250 American Indian tribes and Alaska Native villages, the Quapaw Tribe represents the interests of only a single tribe. Both plaintiffs and defendants persuasively argue that granting the Quapaw Tribe's motion would encourage other individual tribes to move for leave to file similar amici briefs, which would unduly expand the already extensive record in this case. Pls.' Opp. Br. at 5-6; Defs.' Opp. Br. at 7. Therefore, the Court will deny the Quapaw Tribe's motion for leave to file an amicus brief in the present case. Accordingly, it is hereby
ORDERED that the motion of the Quapaw Tribe of Oklahoma (O-Gah-Pah) for the admission pro hac vice of Stephen R. Ward and Jason B. Aamodt for the sole purpose of seeking leave to file, and filing, a brief amicus curiae [1753-1] be, and hereby is, GRANTED. It is further
ORDERED that the motion of the Quapaw Tribe of Oklahoma (O-Gah-Pah) to file an amicus curiae brief [1752-1] be, and hereby is, DENIED. It is further
ORDERED that the motion of the National Congress of American Indians for leave to file an amicus curiae brief [1755-1] be, and hereby is, GRANTED. It is further
ORDERED that, pursuant to Rule 83.2(d) of the Rules of the U.S. District Court for the District of Columbia, the motion of the National Congress of American Indians to grant leave for Geoffrey D. Strommer to appear pro hac vice on its behalf in the instant litigation [1756-1] be, and hereby is, GRANTED. It is further
ORDERED that defendants' motion for an enlargement of time to file an opposition brief to the National Congress of American Indians' Amicus Brief [1800-1] be, and hereby is, GRANTED. Defendants shall have eleven (11) days from the date of the instant order in which to serve and file a memorandum of points and authorities in opposition to the amicus brief of the National Congress of American Indians. It is further

ORDERED that the Brief for Amicus Curiae National Congress of American Indians, dated January 28, 2003, which is attached as an exhibit to the NCAI's motion for leave to file, shall be filed by the Clerk of Court.

ORDER

This matter comes before the Court on defendants' motion to strike scandalous materials from plaintiffs' response to defendant's historical accounting plan for individual Indian money accounts [1795-1], which was filed on February 10, 2003. Rule 12(f) provides in relevant part that "upon motion made by a party within 20 days after the service of the pleading upon the party . . ., the court may order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." It has been observed by well-respected commentators that
[t]he court possesses considerable discretion in disposing of a motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because motions to strike on these grounds are not favored, often being considered `time wasters,' they usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382 (2d ed. 1990) (citing cases) (footnotes omitted). In relation to material alleged to be "scandalous" in nature, the same authorities have explained that "[i]t is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action" and that "[t]he granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety. Of course, if the complaint will not be submitted to the jury, or if the case will be tried to the court, . . . there is less need to strike scandalous allegations." Id. (citing cases) (footnotes omitted).

In a recent case, United States v. Property Identified as Lot Numbered 718, 983 F. Supp. 9, 13 (D.D.C. 1997), this Court denied a motion to strike allegedly scandalous material from the government's response to an affidavit, observing that

it was hardly "scandalous," Fed.R.Civ.P. 12(f), "bear[ing] no possible relationship to the controversy." Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 664 (7th Cir. 1992). Indeed, [the] motion to strike must be denied because it commits the equally objectionable sin of frivolity.
These observations apply equally to defendants' motion. Accordingly, it is hereby

ORDERED that defendants' motion to strike [1795-1] be, and hereby is, DENIED.

ORDER

This matter comes before the Court on Interior Defendants' motion to strike plaintiffs' untimely filings [1760], which was filed on January 30, 2003. Defendants state that plaintiffs made three filings in an untimely manner, and that these filings should be struck as untimely filed.[fn1a] Although plaintiffs concede that the filings were made in an untimely manner, plaintiffs state that the lateness of the filing was due to an inadvertent miscalculation of the date by which they were required to respond to defendants' filings. The Court accepts plaintiffs' representation that the lateness of their filings resulted from a good faith misunderstanding regarding the date on which they were required to respond. Additionally, the Court is mindful of Rule 6(b)(2) of the Federal Rules of Civil Procedure, which provides in relevant part that "[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." However, plaintiffs have failed to file any motion seeking relief under Rule 6(b)(2). Additionally, if the Court were to deem plaintiffs' opposition brief to constitute such a motion, it would be necessary for the Court to permit defendants to file an opposition brief in response, and to permit plaintiffs to submit a reply brief. The Court concludes that this simple procedural issue does not merit another round of briefing, especially given the parties' recent penchant for flooding the Court with motion after motion. Finally, although there might be merit in plaintiffs' argument that no prejudice has accrued to defendants from plaintiffs' having filed their responsive briefs a day or so late, the Court nevertheless concludes that it is only fair to require all parties to the present case to comply with the Federal Rules of Civil Procedure and Local Rules. Accordingly, it is hereby

ORDERED that defendants' motion to strike [1760] be, and hereby is, GRANTED.

MEMORANDUM AND ORDER

This matter comes before the Court on defendants' motion to file under seal a portion of their response to the Seventh Report of the Court Monitor ("Seventh Report") [1304-1], which was filed on May 16, 2002 and defendants' unopposed motion to file under seal their notice of filing the original declaration of James E. Cason [1315-1], which was filed on May 30, 2002. Also before the Court is defendants' motion for a protective order regarding allegedly privileged documents that were referenced in the Seventh Report [1320-1], which was filed on May 31, 2002. Upon consideration of defendants' motions, plaintiffs' opposition thereto, defendants' reply briefs, and the applicable law in this case, the Court finds that defendants' motions should be granted.

I. PROCEDURAL BACKGROUND

On May 2, 2002, the Court Monitor (now Special Master-Monitor) ("Monitor") filed the Seventh Report.[fn1b] The attachments submitted with the Seventh Report included four letters between Justice Department attorneys and Interior Department officials, and two interdepartmental memoranda from the Office of the Special Trustee to the Office of the Solicitor (collectively, "the Six Documents"). On May 16, defendants filed their response to the Seventh Report. On the same date, defendants moved to file under seal a portion of their response that discussed the Six Documents, claiming that the documents fell under the protection of the attorney-client privilege and the work product doctrine. Attachment 3 of defendants' response contained a facsimile copy of a declaration that was composed by Associate Deputy Interior Secretary James E. Cason. Plaintiffs filed their opposition brief on May 30, and defendants submitted their reply brief on June 11. On May 30, defendants filed an unopposed motion seeking to file under seal the original declaration of James E. Cason.

On May 31, defendants moved for a protective order regarding the Six Documents, again asserting that the documents were protected by attorney-client privilege and the work product doctrine. The relief sought in the order included (1) striking the copies of the Six Documents attached to the Seventh Report from the record and ordering them to be returned to defendants, (2) striking from the record portions of the Seventh Report that discussed the Six Documents, (3) ordering the Monitor, plaintiffs, and plaintiffs' counsel to return all copies of the Six Documents to defendants, and (4) barring use or publication of the Six Documents without permission from defendants or a court order. Plaintiffs submitted an opposition brief on June 14, and defendants filed a reply brief on June 26.

II. LEGAL ANALYSIS

A. Attorney-Client Privilege

1. Applicability

"The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Lindsey, 148 F.3d 1100, 1103 (D.C. Cir. 1998). The party that asserts the existence of the attorney-client privilege possesses the burden of demonstrating its applicability. Federal Trade Commission v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980). Not only the privileged relationship but all essential elements of the privilege must be shown "by competent evidence and cannot be `discharged by mere conclusory or ipse dixit assertions.'" See Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 302 (S.D.N.Y. 1991) (internal citation omitted).

In a recent opinion, this Court explained the applicability of the attorney-client privilege to the instant litigation, in which trust beneficiaries are asserting claims against a trustee:

The Court will, consistent with logic and prevailing authority, recognize the existence of an attorney-client privilege where a trustee seeks legal advice solely in his own personal interest or where the discovery material has been shown to relate exclusively to non-fiduciary matters. But the Court will not immunize every communication with counsel simply because it involved some incidental interest, or benefit distinguishable from, but ancillary to, that of the trust beneficiaries. With regard to litigation-related communications, the Court will not recognize the existence of an attorney-client privilege except where a trustee obtained legal advice solely to protect himself personally or the government from civil or criminal liability, an objective that is inherently inconsistent with his or her fiduciary capacity.

Mem. and Order dated Dec. 23, 2002 at 10 (emphasis in original) (footnotes and citations omitted). Accordingly, the Court must determine (1) whether any of the Six Documents fall under the protection of the attorney-client privilege and (2) if so, whether the fiduciary exception applies to any of the Six Documents.

After examining the Six Documents, the Court concludes that the four letters and one of the memoranda fall within the scope of the attorney-client privilege. The letters from Justice Department counsel to the Office of the Solicitor provide legal advice in the form of recommendations about the steps that Interior Department officials should take in order to respond to the document requests of Special Master Balaran ("Master"). The first of the two memoranda from the Office of the Special Trustee to the Office of the Solicitor, which is dated April 12, 2002 (the "first memorandum" or "earlier memorandum"), seeks answers to a series of questions about how to comply with these document requests. The second of the two memorandum, which is dated April 24, 2002 (the "second memorandum" or "later memorandum"), discusses and responds to one of the four letters from Justice Department Counsel to the Solicitor's Office. Two of the letters appear to have been originally accompanied by a cover letter stating that their contents may be "privileged, confidential, or otherwise protected from disclosure under applicable law." Additionally, the four letters and the earlier memorandum were submitted to the Master accompanied by a transmittal letter explaining that they were being provided for his in camera review, and requesting that they not be publicly disclosed without first providing defendants an opportunity to seek a final ruling on the issue of whether they were protected under attorney-client privilege or as work product. See Dept. of the Interior's Resp. to the Seventh Report of the Ct. Monitor ("Resp. to Seventh Report") at 14 & Attach. A-E. Defendants have also submitted an affidavit representing that the four letters were treated by their senders and recipients as confidential communications. See Interior Defs.' Mot. for Protective Order Regarding Privileged Docs. Referenced in the Seventh Report of the Ct. Monitor ("Mot. for Protective Order"), Attach. A (Declaration of Larry Jensen) ¶¶ 5-7.
However, the Court is unable to conclude that the second memorandum merits protection under the attorney-client privilege. Although it arguably "provides legal advice or services," in that it quotes from and summarizes one of the four letters and opines as to the credibility of the opinions expressed in that letter, defendants have failed to demonstrate that the recipient and sender expected that the memorandum would remain confidential. In Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993), the D.C. Circuit explained that "the critical factor for purposes of the attorney-client privilege was that the communication be made `in confidence for the purpose of obtaining legal advice from the lawyer.'") (quoting FTC v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980)) (emphasis in original). But there is no statement accompanying the letter indicating that its contents were to remain confidential. Defendants' briefs contain only the conclusory statement that although the memorandum was produced to the Master without a transmittal letter informing him that its contents should remain confidential, it "is privileged nonetheless." Resp. to Seventh Report at 13; Mot. for Protective Order at 4. Defendants provide no basis for this legal conclusion. Finally, although the declaration of Justice Department attorney Larry Jensen does state that after he received a copy of the memorandum, its recipient and he "did not further disseminate [it], and thus we made appropriate efforts to preserve [its] confidentiality," his declaration provides no evidence that the sender and recipient had an expectation of confidentiality when the letter was originally transmitted. Mot. for Protective Order, Attach. A, ¶ 8. Accordingly, the Court is unable to find that this memorandum warrants the protection of the attorney-client privilege. However, the Court does find that the four letters and the earlier memorandum constitute confidential communications between a client (the Interior Department) and its attorneys (the Office of the Solicitor and Justice Department) made for the purpose of providing or securing legal advice, and are therefore protected under attorney-client privilege.
The second issue is whether the fiduciary exception, as it applies in the instant case, applies to these five documents. The Court must determine whether the advice contained in the letters and the first memorandum was not provided solely to protect the recipient personally, or the Interior Department generally, from the threat of civil or criminal liability, but instead related in some way to trust administration. As stated above, the subject matter of these documents is the proposed response of the Interior Department to the document requests of the Master. On their face, they do not appear to relate to administration of the trust even in the most tangential way. Moreover, nothing in plaintiffs' briefs indicate that these documents bear any relation to trust administration. The Court therefore concludes that these five documents do not fall within the scope of the fiduciary exception to the attorney-client privilege.

2. Waiver

The next issue is whether defendants have waived the protection afforded by the privilege. Defendants assert that the production of the Six Documents to the Master and the Monitor was not voluntary and therefore did not constitute a valid waiver of attorney-client privilege. Additionally, defendants assert that the publication of the Six Documents in the Seventh Report, and their subsequent dissemination, also did not constitute a valid waiver of attorney-client privilege. The Court will examine each of these claims in turn.
The leading case in the D.C. Circuit on the inadvertent waiver of privileged materials is In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989). In that case, Judge Silberman declared that "[s]hort of court-compelled disclosure, or other equally extraordinary circumstances, we will not distinguish between varying degrees of `voluntariness' in waivers of the attorney-client privilege." Id. at 980 (citation omitted). However, the case law that discusses inadvertent waiver in the context of privileged documents that were obtained by adversary parties manifestly does not apply to the instant situation, in which the Six Documents were not obtained by a party to this litigation but by an officer of the Court. Moreover, another court in this Circuit has clarified that "[v]oluntary disclosure means the documents [at issue] were not judicially compelled." Chubb Integrated Sys. Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 63 n. 2 (D.D.C. 1984). Accordingly, the issue before the Court is whether the disclosure of the Six Documents to the Monitor was judicially compelled.

In the Seventh Report, the Monitor explained the means by which he had obtained the Six Documents:

Pursuant to this Court's April 16, 2001 Order and the Secretary of the Interior's April 24, 2001 subsequent direction in light of that Order that the Court Monitor should be provided "access to any Interior offices or employees to gather information necessary or proper to fulfill his duties," the Court Monitor secured these memoranda in light of the issues presented that are of interest to this Court in its determination of the progress of trust reform and any actions of the Defendants and their counsel that might delay that reform.
Seventh Report at 68. In other words, the Monitor obtained these memoranda under the authority vested in him by an order of this Court. The receipt of the documents by a judicial officer under these circumstances is thus analogous to the receipt of documents by this Court for in camera review. It would be difficult for the Court to conclude that, under such circumstances, the disclosure of these documents to the Monitor was not judicially compelled.
A recent D.C. Circuit case accords with this Court's conclusion. In SEC v. Lavin, 111 F.3d 921 (D.C. Cir. 1997), after defense counsel was informed by the defendant's employer that tapes of the defendant's conversations with his wife had been provided to the Federal Reserve pursuant to its examination powers under 12 U.S.C. § 325, he immediately asserted the confidential marital communications privilege. Id. at 924. The D.C. Circuit found that this disclosure did not constitute a waiver of the privilege because the tapes were turned over in response to the Federal Reserve's invocation of its statutory examination powers. Id. at 932. Its finding turned in part on its analogy of the martial communications privilege to the attorney-client privilege:
Generally, the considerations that support a strict approach to waiver in the attorney-client context would appear to apply as well in the marital context: while both privileges serve to promote important public interests by encouraging full and frank communications within special relationships, they must be narrowly construed because of their adverse effect on the full disclosure of truth.
Id. at 929 (internal citations omitted). The D.C. Circuit also noted that, in order to establish the existence of the privilege, the defendant had submitted transcripts of the tapes to the district court for in camera review. Id. at 933. The court's discussion of this occurrence is particularly relevant to the present situation:
Citing In re Sealed Case, 877 F.2d at 980, which involved disclosure of privileged materials to third parties, not to the court, the SEC maintains that the [defendant's] uninvited submission of the transcripts for the district court's in camera review was improper, and the resulting disclosure thus constituted waiver of the privilege. This contention is meritless. Not only did the district court properly exercise its discretion in deciding to review the tapes in camera, but we know of no case, and the SEC points to none, where the submission of privileged material to the court for in camera review in order to demonstrate the existence of a privilege has itself been held to constitute waiver.
Id. at 933 n. 15. This Court is also unaware of any case in which the submission of privileged material for in camera review has been deemed to constitute a waiver of the asserted privilege. It would thus be illogical to find that a closely analogous situation — namely, the submission of privileged documents to a judicial officer acting pursuant to the authority vested in him by court order — resulted in a waiver of privilege.
Case law from other circuits lends credence to the Court's conclusion in this regard. For example, in Shields v. Sturm, Ruger & Co., 864 F.2d 379 (5th Cir. 1989), the Fifth Circuit refused to find a waiver of the work product doctrine for a survey used in a prior judicial proceeding when the survey's use in the prior case was compelled by court order and produced over the defendant's objections. The court explained that when a party is compelled to disclose work product, and does so only after objecting and taking other reasonable steps to protect the privilege, "one court's disregard of the privileged character of the materials does not waive the privilege before another court." Id. at 382. Similarly, in Schaffer v. Below, 278 F.2d 619, 628 (3d Cir. 1960), the court held that a disclosure of attorney-client correspondence in response to a court-ordered subpoena did not destroy the privilege. And in a case in which the federal government had been granted permission ...

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