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COBELL v. NORTON
April 29, 2003
ELOUISE PEPION COBELL, ET AL., PLAINTIFFS,
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
In its September 17, 2002 memorandum opinion, this Court stated that it would schedule further proceedings in this litigation "to ensure that the defendants properly discharge their fiduciary obligations." Cobell v. Norton, 226 F. Supp.2d 1, 135 (D.D.C. 2002). The Court also explained that it had
fashioned much of the relief granted today (such as
future proceedings and the appointment of a special
master) simply because of the current status of trust
reform. That is, irrespective of whether the
defendants perpetrated a fraud on the plaintiffs and
this Court, there is no doubt that they have failed to
bring themselves promptly into compliance with the
fiduciary duties declared by the Court in December of
1999 and listed in the 1994 Act. As such, the Court
has no choice but to modify the future proceedings in
this case and to appoint another special master to
monitor the status of trust reform and the defendants'
efforts to bring themselves into compliance with the
trust obligations declared by the Court and enumerated
in the 1994 Act.
Id. Therefore, although that opinion is presently on appeal to the D.C. Circuit, the further proceedings ordered that date (which proceedings have been designated the "Phase 1.5 trial") shall proceed as scheduled, because they are "not dependent on the Court's conclusion that the defendants committed several frauds on the Court" or on the Court's civil contempt findings. Id.
On April 29, 2003, the Court held a pretrial conference for the Phase 1.5 trial. Having considered the arguments presented by the parties during that conference, the Court hereby enters the following orders:
1. It is hereby ORDERED that the Phase 1.5 trial,
which is scheduled to commence on 10:00 a.m. on
Thursday, May 1, 2003, shall be conducted in
accordance with the pretrial statements that have
been submitted by the parties. Any witnesses and
exhibits that were neither identified in these
pretrial statements nor identified during the April
29 hearing shall not be received, absent prior
express leave from the Court.
2. During the April 29 hearing, the Court orally
denied defendants' motion in limine as to
plaintiffs' proffered expert "rebuttal" testimony
and opinions. The Court also heard oral arguments
on defendants' motion in limine to exclude
plaintiffs' January 6 Plan and all evidence offered
by plaintiffs in support of their Plan. The Court
will deny that motion. Contrary to defendants'
arguments, Plaintiffs' January 6 Plan is not a
model for calculating damages, but a model for
conducting an historical accounting of the
individual Indian money (IIM) trust that seeks to
shift the burden to defendants to determine a
method for distributing the undisbursed funds in
the trust to each IIM beneficiary. Accordingly, it
is hereby ORDERED that defendants' motion in limine
to exclude plaintiffs' plan for determining
accurate balances in the Individual Indian Trust
and all evidence offered in support [1998-1] be,
and hereby is, DENIED.
3. All other motions in limine submitted by defendants
will be ruled upon as the need arises during the
Phase 1.5 trial.
4. In light of the Court's determination during the
April 29 hearing to exclude the testimony of Joe
C. Christie from the Phase 1.5 trial, except as a
potential authentication witness, it is hereby
ORDERED that plaintiffs' motion for a protective
order relating to Christie's scheduled deposition
[1946-1] be, and hereby is, DENIED as moot. It is
further ORDERED that defendants' motion to compel
discovery from Christie and request for expedited
consideration [1985-1] be, and hereby is, DENIED as
moot. It is further ORDERED that defendants'
motion to disqualify Christie as an expert witness
and to disqualify Dennis Gingold as Christie's
counsel be, and hereby is, DENIED as moot.
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