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Cobell v. Norton

March 5, 2003



This matter comes before the Court on Interior defendants' motion for a protective order regarding documents requested by the Special Master-Monitor ("Monitor") and regarding the rule announced by the Monitor concerning deposition questioning [1747], which was filed on January 23, 2003. Upon consideration of defendants' motion, plaintiffs' opposition thereto, defendants' reply brief, and the applicable law, the Court finds that defendants' motion should be denied.


On April 16, 2001, with the consent of both parties, the Court appointed Joseph S. Kieffer, III, to serve as court monitor in this action. Mr. Kieffer was directed to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his findings," which were to include "a summary of the defendants' trust reform progress and any other matter [he] deems pertinent to trust reform." Order dated April 16, 2001 at 2. Defendants were ordered to "facilitate and assist Mr. Kieffer in the execution of his duties and responsibilities" and to provide him with "access to any Interior offices or employees to gather information necessary or proper to fulfill his duties." Id.

On September 17, 2002, the Court found Interior Secretary Gale Norton and Assistant Interior Secretary Neal McCaleb to be in civil contempt for committing several frauds upon the Court. In a memorandum opinion issued that date, the Court ordered a special master to be appointed in the instant case to monitor the status of trust reform. Explaining that there were "no practical means by which this Court alone can monitor the status of trust reform or the defendants' purportedly vast efforts to bring themselves into compliance with their trust responsibilities," the Court determined that the appointment of a special master was "clearly necessary to ensure that this Court and the plaintiffs receive timely, accurate information regarding the status of trust reform and the defendants' efforts to discharge properly their fiduciary duties." Mem. Op. dated Sept. 17, 2002, at 259, 258. In order to ensure that the parties would understand the nature of the duties bestowed upon the special master-monitor, the Court specified that "[t]he special master-monitor shall also oversee the discovery process and administer document production, except insofar as the issues raised by the parties relate to IT security, records preservation and retention, the Department of the Treasury, or Paragraph 19 documents" and that "[a]ll other future discovery matters shall be within the purview of the newly appointed special master-monitor unless the Court specifically directs that they be handled by Special Master Balaran." Id. at 261.

The Court entered an order the same date appointing Mr. Kieffer to serve as Special Master-Monitor in this case, pursuant to Rule 53 of the Federal Rules of Civil Procedure. The order declared that "[t]he Special Master-Monitor shall have and shall exercise the power to regulate all proceedings in every hearing before the master-monitor and to do all acts and take all measures necessary or proper for the efficient performance of the master-monitor's duties, as set forth in this order." Order dated Sept. 17, 2002, at 3. This language quoted directly the description of the powers granted to special masters appointed pursuant to Rule 53. Additionally, the appointment order provided that

[t]he Special Master-Monitor shall also oversee the discovery process in this case and administer document production - except insofar as the issues raised by the parties relate to IT security, records preservation and retention, the Department of the Treasury, and Paragraph 19 documents - to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court. The Special Master-Monitor shall file with the Court, with copies to defendants' and plaintiffs' counsel, his report and recommendation as to any discovery dispute that arises which cannot be resolved by the parties. Id. at 3-4.

On December 20, 2002, plaintiffs deposed Acting Special Trustee Donna Erwin. Towards the end of the deposition, plaintiffs asked Erwin whether Justice Department attorneys had made any factual misrepresentations to the Court during a hearing on December 17. Defense counsel directed Erwin not to answer the question, invoking attorney-client privilege and claiming that the question was harassing. The Monitor determined that the information sought by plaintiffs was not privileged, and that the question was not harassing in nature. Despite the Monitor's determination, defense counsel ordered Erwin not to answer the question. Because of the repeated objections of defense counsel, the deposition ended without Erwin providing an answer to the question.

On January 2, 2003, citing the incident that had occurred at the end of the Erwin deposition, the Monitor informed defendants:

The result of defendants' counsel's refusal to accept the authority of the Special Master-Monitor to regulate the depositions, in my opinion, has been to put plaintiffs' counsel at a severe disadvantage due to plaintiffs' counsel's acceptance of the direction of the Special Master-Monitor even in the presence of the defendants' counsel's active objection to and refusal to follow it. This conduct cannot continue without further erosion of the Court's authroity and the resultant inability of plaintiffs to conduct effective Phase 1.5 trial discovery. Defs.' Mot. for a Protective Order as to Discovery by the Special Master-Monitor and as to the Rule Announced by the Special Master-Monitor Concerning Deposition Questioning ("Mot. for Protective Order"), Ex. T, at 3.

Citing the above-mentioned language from the Court's September 17, 2002 order, the Monitor informed defendants that during future depositions, if defense counsel refused to comply with instructions issued by the Monitor pursuant to his authority under Rule 53 to regulate all proceedings in every hearing before him, the Monitor would consider terminating the deposition and filing a report and recommendation with the Court. Id. The Monitor explained that such a report could include a recommendation that the Court issue an order to defense counsel to show cause why his or her conduct should not be referred to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action under Rule 8.4(d) of the District of Columbia Rules of Professional Conduct, *fn1 or why the conduct of defense counsel did not warrant sanctions under Rule 37(a)(4)(A) of the Federal Rules of Civil Procedure. *fn2 Id.

On December 18, 2002, during a deposition overseen by the Monitor, Office of Historical Accounting Director Bert Edwards noted that he had "seen a letter from [Special Trustee] Slonaker that says an historical accounting was not possible. I believe that was May 5, but I'm not sure." Transcript of Deposition of Bert Edwards, December 18, 2002, at 219. Edwards also stated that he had received a letter from Slonaker, in response to a memorandum from the Office of Historical Trust Accounting (OHTA), which stated that "the judgment accounts that we did did constitute historical accounting." Id. On December 22, 2002, the Monitor wrote to defense counsel requesting copies of the letter and memorandum "and any other correspondence between Mr. Slonaker and his staff and Mr. Edwards and his staff regarding the judgment accounts and the OHTA's personnel's request for the Special Trustee's opinion or comments about the judgment accounts' qualification as an historical accounting." Mot. for Protective Order, Ex. D, at 2. The Monitor explained that he sought the documents pursuant to his authority under his appointment order "to monitor the status of trust reform and the Interior defendants' efforts as they relate to the duties declared by the Court and prescribed in the 1994 Act." Id.

On December 31, 2002, defense counsel responded to the Monitor's request by providing the Monitor with the letter and selected portions of the memorandum that he had requested. Asserting that two attachments of the memorandum "may be privileged," defense counsel stated that defendants would "provide a supplemental response upon further review of this material." Mot. for Protective Order, Ex. E, at 2. Defense counsel also stated that defendants would ascertain whether they possessed any of the other correspondence sought by the Monitor and would provide a further response. Id.

The next day, the Monitor issued another written request for the documents he had sought in his December 22 letter. The Monitor discussed the conclusions reached in the Court's December 23 ruling concerning the application of the attorney-client privilege to the instant litigation. Mot. for Protective Order, Ex. F, at 2-3. The Monitor then informed defendants that, based on Edwards's description of the documents in question during his deposition, there was no reason to believe that the documents were protected under attorney-client privilege. Id. at 2. Accordingly, the Monitor made a second request for the documents, asking that they be delivered to him by January 3. Id. at 3.

On January 3, defense counsel responded to the Monitor's second request. After summarizing the previous communications, defense counsel stated: "To the extent you have now assumed the authority to investigate the accuracy of Mr. Edwards's deposition testimony, or the adequacy of the judgment accountings, we believe your actions exceed those that have been (or could be) authorized by the Court." Mot. for Protective Order, Ex. G, at 2. Defense counsel concluded with the following declaration:

We attempted to accommodate your December 22 request because it was not obviously inconsistent with your authority and it sought specific documents that were readily accessible. As your subsequent request suggests that you intend to undertake an inquiry that may be improper, and to which we therefore cannot consent, we request that you provide us (1) notice of the precise scope of the inquiry you intend to undertake; and (2) an explanation of exactly how this inquiry is authorized by the court order appointing you. Id.

The Monitor made a third request for the documents in a letter dated January 6. Mot. for Protective Order, Ex. H. The following day, defense counsel responded that defendants required further time to evaluate the Monitor's requests, and reiterated a "concern that your inquiry was no longer limited to your monitoring trust reform but now included an investigation into Mr. Edwards' credibility, which we maintain is beyond the scope of your powers as Special Master-Monitor." Mot. for Protective Order, Ex. I, at 1. The Monitor made a fourth request for the documents in a letter dated January 8, and explained that failure to produce the documents by the close of business that day would be construed as a refusal by defense counsel to produce the documents. Mot. for Protective Order, Ex. J, at 2. In a one-paragraph memorandum sent the same date, defense counsel informed the Monitor: "Whether we will produce or not produce those documents is still a matter under consideration and we will provide a supplemental response as soon as possible." Mot. for Protective Order, Ex. K.

On January 15, 2003, twenty-four days after the Monitor's original request, the Monitor issued a fifth written request for the documents. Two days later, defense counsel informed the Monitor that defendants would be "unable to comply with your request . . . because [the documents] are protected by the attorney client privilege, the deliberative process privilege and the work product doctrine." Mot. for Protective Order, Ex. O. Defense counsel also claimed that

[t]he Department of Justice has not yet made a final decision as to whether the Defendants will appeal from [the Court's December 23, 2002 opinion regarding attorney-client privilege]. Until that decision is made, we cannot disclose matters protected by the attorney client privilege because we must avoid taking action that would waive the privilege. Plaintiffs have recently sought a ruling by the Court on the applicability of the deliberative process and the matter is now awaiting the Court's ruling. Until it is finally resolved, we cannot waive the privilege by disclosing deliberative information. Id. *fn3

On January 23, defendants filed the instant motion, seeking a protective order against the Monitor. Plaintiffs filed their opposition brief on February 14, seeking an award of sanctions against defendants pursuant to Federal Rule of Civil Procedure 26(c).


A. Defendants' Motion for a Protective Order

Rule 26(c) of the Federal Rules of Civil Procedure provides that "[u]pon motion by a party or by the person from whom discovery is sought" and "for good cause shown," a district court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Defendants seek an order from this Court pursuant to Rule 26(c) that "(1) relieves them of any obligation to respond to discovery propounded by the Special Master-Monitor . . . and (2) proscribes the Special Master-Monitor from implementing a rule he has announced that would enable him from making dispositive substantive rulings at depositions and to compel witnesses, under threat of potential disciplinary action against their ...

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