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COBELL v. NORTON

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 LAMBERTH, District Judge

MEMORANDUM AND ORDER

Before the Court is defendants' May 12, 2004 Motion to Strike Plaintiffs' Emergency Notice of Individual Indian Trust Records in Imminent Risk of Destruction and Loss][2569] ("Motion to Strike"), plaintiffs' opposition, and defendants' reply thereto. The Emergency Notice filed by Plaintiffs on April 28, 2004 reports the destruction and damage to individual Indian trust records — the details of which are set out in two letters: one authored by unidentified employees of the Office of Trust Records ("OTR"), division of the Office of the Special Trustee ("OST"), see Emergency Notice, Ex. 1 ("OTR Letter"), and a second penned by OTR union representative Susan Sandoval. Id. at Exhibit 2 ("Sandoval Letter").

Defendants move to strike Plaintiffs' Emergency Notice pursuant to Fed.R. Civ. P. 12(f) arguing that the filing is "incompetent;" contains unsupported "extremely disturbing information concerning the current status of records retention" at the Department of the Interior, Motion to Strike at 1, 2; consists of "facially incompetent letters" whose contents "have no legal pertinence," id. at 3; and "includes derogatory slurs (including race-based remarks) against certain Interior officials." Id. at 3 n. 5. Defendants, in support of their Motion to Strike, file a letter from Michael M. Billings, Labor Relations Officer, U.S. Department of the Interior responding to the Sandoval Letter, attached to which is a letter from OTR Director Ethel Abeita ("Abeita Letter"). Motion to Strike at Exhibit 1.

  For the reasons set forth more fully below, the Court finds defendants' contentions to be without merit and denies the Motion to Strike.

  Standard of Review

  Rule 12(f) provides, in pertinent part, that "upon motion made by a party within 20 days of 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." Fed.R. Civ. P. 12(f). It is settled in this jurisdiction that the term "pleading" for the purposes of Rule 12(f) includes affidavits and declarations filed in support of technical pleadings because Rule 12(f) is the only viable method for attacking materiality and pertinence defects in such documents. See Larouche v. Department of the Treasury, 2000 WL 805214, at *13-14 (D.D.C. 2000) (citing Humane Society of the United States v. Babbitt, 46 F.3d 93, 97 n. 5 (D.C. Cir. 1995) (internal citation omitted). The Court, possessing considerable discretion in disposing of motions to strike, is mindful that motions to strike are not favored, are often being considered "time wasters," 2A Moore's Federal Practice, § 12.21 at 2419, and should usually be denied "unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation," Ulla-Maija, Inc. v. Kivimaki, 2003 WL 169777, at *4 (S.D.N.Y. 2003), or "unless it can be shown that no evidence in support of the allegation would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d. Cir. 1976) (emphasis added).

  Applying these standards to the facts presented here, the Court finds plaintiff's Emergency Notice beyond the reach of defendants' Motion to Strike. Rule 12(f) Does Not Apply to the Allegations Set Out in the Emergency Notice as a Matter of Law

  Defendants contend that the Emergency Motion is repetitive; without legal pertinence; immaterial to the underlying proceedings; and contains defamatory statements that must be stricken under Rule 12(f). Defendants are mistaken; their argument betrays a misreading of Rule 12(f), a misreading of the allegations set out in the Emergency Notice, and an unreasonably narrow construction of their fiduciary responsibilities.

  In the first instance, "redundant" matter, as contemplated by Rule 12(f), refers to allegations that constitute a needless repetition of other averments in a pleading. One such example confronted the court in Stewart v. Thomas, 538 F.Supp. 891, 894 (D.D.C. 1982), where plaintiff's cause of action for "outrage" was stricken as redundant under Rule 12(f), since the plaintiff also asserted a separate claim for intentional infliction of emotional distress. The allegations set out in the Emergency Notice present no such repetition. They do not regurgitate past instances of misfeasance but alert the Court to new incidents of document destruction.

  The Emergency Notice similarly can not be construed as being "without legal pertinence," or "immaterial." Under Rule 12(f) "immaterial" matter consists of statements and averments bearing no essential or important relationship to the claim for relief or the defenses being pled. See, e.g., Mitchell v. Bendix Corp., 603 F.Supp. 920 (N.D. Ind. 1985) (agency findings with no preclusive effects on district court were stricken from employment discrimination complaint as immaterial). As stated, both the OTR and the Sandoval Letters detail incidents whereby trust records vital to individual Indian beneficiaries were placed in jeopardy and/or destroyed. To find these averments "immaterial" or "legally impertinent" would be tantamount to ruling that the destruction of trust information bears no essential or important relationship to the plaintiffs' claim for relief. Nothing could be further from the truth. Retention and preservation of document and trust information is at the core of this litigation and has preoccupied this Court since it first held that "[t]he Indian Trust Fund Management Reform Act, 25 U.S.C. §§ 162a et seq. and 4011 et seq., requires defendants to retrieve and retain all information concerning the IIM trust that is necessary to render an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs." Cobell v. Babbitt, 91 F.Supp.2d 1, 58 (D.D.C. 1999). This view was resoundingly affirmed by the Court of Appeals:
The government's broad duty to provide a complete historical accounting to IIM beneficiaries necessarily imposes substantial subsidiary duties on those government officials with responsibility for ensuring that an accounting can and will take place. In particular, it imposes obligations on those who administer the IIM trust lands and funds to, among other things, maintain and complete existing records, recover missing records where possible, and develop plans and procedures sufficient to ensure that all aspects of the accounting process are carried out.
Cobell v. Norton, 240 F.3d 1081, 1105 (D.C. Cir. 2001).

  Beyond the legal significance attaching to the preservation of trust information, the allegations set out in the Emergency Notice must be assessed in the context of a string of similar incidents which have checkered this litigation dating back to December 22, 1999 when the Court found by clear and convincing evidence "that Bruce Babbitt, Secretary of the Interior; Robert Rubin, Secretary of the Treasury; and Kevin Gover, Assistant Secretary, Department of the Interior are in civil contempt of this court's First Order of Production of Information, issued November 27, 1996 and subsequent Scheduling Order of May 4, 1998." Cobell v. Babbitt, 37 F. Supp.2d 6, 15 (D.D.C. 1999). The Court found these cabinet officials not only failed to produce documents responsive to plaintiffs' discovery requests, but lied about their failure to clean up a rodent infestation that infected trust records at a Nebraska document storage facility, id.; a rodent infestation in an Albuquerque document facility that housed "thousands of uninventoried boxes of IIM documents" id. at 22 n. 8; and the destruction of documents and microfiche by the Department of the Treasury. Id. at 28.

  It was these abuses that compelled this Court to appoint a Special Master to, among other things, monitor the orderly flow of discovery and to ensure that trust information was safeguarded in accordance with fiduciary principles and Court order. See Order (Feb. 24, 1999).

  Since his appointment, the Master has filed dozens of reports documenting a myriad of disturbing (and undisputed) findings with respect to the lack of care with which trust information was being safeguarded. See, e.g., Report of the Special Master Regarding Site Visits to Area and Agency Offices (Oct. 29, 1999) (concluding that agency and area offices are unable to ensure the safe storage of trust records); Report of the Special Master Regarding Site Visits to Area and Agency Offices (Apr. 25, 1999) (concluding that, in several agency offices, active trust documents are not stored and maintained properly); Third Report of the Special Master Regarding Site Visits to Area and Agency Offices (Nov. 12, 1999) (reporting instances of trust records stored in puddles water near sacks of fertilizer, as well as in wooden and corrugated metal shed amidst gasoline canisters, tires, machinery and other debris); Recommendation and Report of the Special Master Regarding the Delayed Disclosure of the Destruction of Uncurrent Check Records Maintained by the Department of the Treasury (Dec. 3, 1999) (discussing Treasury's failure to disclose the fact that it had destroyed 162 boxes of historical documents); Report of the Special Master Regarding the Destruction of Eleven Boxes of Treasury Securities by the Fort Worth Federal Record Center (Jan. 9, 2001); Site Visit Report of the Special Master to the Office of Information Resources Management (Mar. 12, 2001) (documenting the lack of security at the Office of Information Resources Management in Reston, Virginia and the discovery of information relating to individual Indian money accounts in a shredder); Report and Recommendation of the Special Master Regarding the Security of Trust Data at the Department of the Interior (Dec. 4, 2001) (discussing the wholesale abdication by Interior of its responsibilities to safeguard individual Indian trust data residing on its computer systems); Second Investigative Report of the Special Master Regarding the Office of Trust Records (Apr. 11, 2002) (discussing OST/OTR's failure to implement a meaningful trust records training program); and Emergency Report of the Special Master Regarding defendant's Proposed Relocation of Records to the Lee's Summit Federal Records Center at 22-23 (Apr. 17, 2002) (exposing the decision of senior Interior/OST officials to transport 32,000 boxes containing active individual Indian trust information to the Lee's Summit Federal Records Center "without regard to the consequences" and with "an utter indifference to the safety of these records or to the ability of IIM beneficiaries to have meaningful access to vital information"). Two additional reports of the Special Master have been disputed and are still pending action. See Corrected Report of the Special Master Regarding the Deletion of Individual Indian Trust Information by Former Assistant Secretary-Indian Affairs Neal McCaleb (Jan. 24, 2003) (reporting that the former Assistant Secretary, Indian Affairs routinely deleted individual Indian trust information from his computer); and Site Visit Report of the Special Master to the Office of Appraisal Services in Gallup, New Mexico and the Bureau of Indian Affairs Navajo Realty Office in Window Rock, Arizona (Aug. 20, 2003) (reporting the destruction of computer information relating to the appraisals of allottee lands by the former BIA Navajo Regional Supervisory Appraiser Anson Baker).

  The allegations set out in the OTR Letter and Sandoval Letter are yet another chapter in this sad litany of indifference demonstrated by defendants. They are not "immaterial." These allegations are similarly not "impertinent." Under Rule 12(f), if material pleaded "fairly presents a question of law or fact which the court ought to hear, it may not be stricken as impertinent." Gateway Bottling, Inc. v. Dad's Rootbeer Co., 53 F.R.D. 585, 588 (W.D. Pa. 1971). The validity of the ...


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