IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER 
REGARDING PLAINTIFFS' NOTICES OF DEPOSITION OF HORD TIPTON, 
BRIAN BURNS, PAT MOLONEY [SIC], THAO LE, AND JOHN MESSANO 
In their Opposition to Defendants' Motion for a Protective Order ("Opposition"), 
Plaintiffs1 try to turn back the clock nearly two and one half years to September 17, 2002, when 
the Court granted them broader discovery rights. They myopically ignore the far more recent 
limitations on discovery prescribed by the Court's September 2, 2004 orders on discovery,2 and 
the Court's December 20, 2004 Order denying Plaintiffs' request for a discovery schedule, as well 
as the limitations on the Court's powers, discussed in the opinions from the Court of Appeals on 
December 3 and 10, 2004.3 Plaintiffs do not even discuss the September 2 Orders. Instead, they 
1/ In their Opposition Plaintiffs' attorneys inform the Court, without citation, that the class has 
grown to "more than 500,000 individual Indian trust beneficiaries." Opposition at 3 n.2, 13 n.14. 
It is difficult to understand how the number of absent class members has relevance to the 
arguments asserted by Plaintiffs in their Opposition, but Plaintiffs' estimation lacks citation for 
the simple reason that no evidence supports such a claim. 
2/ The Court issued two orders on September 2, 2004, that use identical language in discussing 
the discovery available to Plaintiffs. 
3/ Although the mandates have now been issued for both of the December 2004 Court of 
Appeals' opinions, neither had issued when Plaintiffs noticed the depositions on December 30, 
2004.
unaccountably chide Defendants for "wholly ignoring – without so much as a reference let alone 
an honest discussion of – this Court's most recent decision on discovery, rendered less than a year 
ago," citing the Court's March 15, 2004 discovery opinion. Opposition at 8. How Plaintiffs can 
make this accusation, while ignoring the September 2, 2004 and December 20, 2004 Orders, is 
mystifying. 
As discussed in Defendants' Motion, the September 2 Orders limited discovery to those 
circumstances where Plaintiffs first demonstrate that the requested discovery involves IIM trust 
record retention and preservation issues. Motion at 2. Although Plaintiffs blithely mention that 
each of the officials noticed for deposition "plays an important role in matters related to the 
preservation of Trust records," Opposition at 2, Plaintiffs do not seek to take discovery about the 
current state of document retention and preservation at Interior.4 Instead, they admit that the real 
reason for the noticed depositions is to try to prove that statements and certifications provided by 
Interior officials regarding IT security were false. Opposition at 2 n.2, 3 n.3. As discussed in the 
Motion, this type of investigation, monitoring and oversight by Plaintiffs is inappropriate. 
Motion at 5.5 
4/ Plaintiffs tell the Court that at the noticed depositions they expect to elicit information about 
"instructions, assignments, limitations and tasks – from . . . defense counsel." Opposition at 6. 
To the extent Plaintiffs seek information protected by the attorney-client privilege, such 
discovery is impermissible. 
5/ Plaintiffs' recent actions have demonstrated their willingness to abuse the discovery process. 
Since December 20, 2004, when the Court denied their request to set a discovery schedule, 
Plaintiffs have noticed twenty-three depositions and served two sets of requests for production of 
documents (by contrast Plaintiffs only took eleven depositions during the discovery period 
permitted by the Court for Phase 1.5 trial, and five of those were of experts). The depositions 
were noticed for almost every business day from January 13 through February 17. Plaintiffs have 
even noticed the deposition of Professor Pierce, a non-party with no possible information 
relevant to any of Plaintiffs' claims in this lawsuit. Because there is no proceeding set and no 
2
Moreover, even if Plaintiffs were able to meet their burden under the September 2 Orders, 
they refuse to limit the scope of the noticed depositions to document preservation and retention 
matters.6 They insist that they have "full discovery rights." Opposition at 7, 10; see also January 
3, 2005 Letter from Dennis Gingold to John Siemietkowski at 1 (Exhibit A) ("plaintiffs intend to 
depose Messers. Tipton, Burns, and Maloney to obtain information on all matters relevant to this 
litigation . . . ."). 
Defendants do not argue that Plaintiffs can never get discovery in this case. Defendants 
simply explain that discovery is not authorized now. Discovery under the Federal Rules of Civil 
Procedure requires an object: a party takes discovery to acquire information relevant to a claim 
or defense for some future proceeding at which that claim or defense is to be litigated. Given the 
recent appellate decision, the future course of this litigation is unclear. In any event, no 
proceeding at which any identified claim of Plaintiffs is to be litigated has been scheduled. 
Therefore, neither Plaintiffs nor Defendants are currently able to determine "relevant" discovery 
to which Plaintiffs would be entitled. Plaintiffs seemed to recognize as much when they asked 
the Court (twice) to set a trial date on IT security issues and a "comprehensive discovery 
schedule related thereto." See Plaintiffs' Request for Emergency Status Conference Regarding 
the Security of Electronic Trust Records, at 1 (December 3, 2004); Plaintiffs' Renewed Request 
for Emergency Status Conference Regarding the Security of Electronic Trust Records, at 2 
need for discovery at this time, especially the overwhelming barrage of discovery initiated by 
Plaintiffs, this suggests an effort at harassment. 
6/ Plaintiffs allege that "full discovery" is needed "to begin the difficult process of uncovering 
racketeering and other malfeasance engaged of [sic] the trustee-delegates and their managers, 
agents and counsel . . . ." Opposition at 9 n.9. Again, this is precisely the type of oversight, 
monitoring, and investigation that Plaintiffs are not entitled to undertake. See Motion at 5. 
3
(January 4, 2005).7 Until the Court rules on the two pending motions from Plaintiffs regarding 
the scheduling of future proceedings, discovery is premature. 
However, as discussed in the Motion, Defendants believe that even if the Court sets a trial 
date, Plaintiffs' discovery rights should be limited by the procedures prescribed by the APA and 
related authorities. See Motion at 2-5. Plaintiffs concede that discovery is limited in APA cases, 
but argue that "[t]he rationale behind the irrelevance of APA restrictions to this case is selfevident." 
Opposition at 11. Plaintiffs argue that "since this is a trust case and an Indian case" the 
ordinary limits imposed by the APA do not apply. Id. at 14. As discussed in the Motion, the 
Court of Appeals in its December 10 opinion rejected this argument. Plaintiffs ignore the 
extensive discussion in the December 10 opinion regarding the principles from Lujan v. National 
Wildlife Federation, 497 U.S. 871 (1990), and Norton v. Southern Utah Wilderness Alliance, 124 
S.Ct. 2373 (2004), and the limitations the APA places on the Court's powers. See Cobell v. 
Norton, 392 F.3d 461, 472-73 (D.C. Cir. 2004). 
After ignoring the Court of Appeals' direct application of the APA limits to this case, 
Plaintiffs pretend to find authority for unrestrained discovery in the D.C. Circuit's observation 
that it was permissible for the Court to order Interior to file a plan, because the Court has 
authority to acquire "discovery" of Interior's plans. See Opposition at 12-13 (quoting Cobell, 392 
F.3d at 474). It should go without saying that Plaintiffs' powers are not synonymous with the 
7/ Plaintiffs have also asked the Court to set a trial date on the work done by Ernst & Young 
regarding the named Plaintiffs' accounts. See Plaintiffs' Motion to Set Date Certain for Trial of 
Adequacy of Final "Accounting" for Named Plaintiffs (December 30, 2004). Plaintiffs do not 
ask for a discovery schedule associated with that Motion, but claim that the matter is "ready for 
adjudication," and describe for the Court what they will show at such a trial, implying that 
Plaintiffs do not need discovery for that matter. See id. at 5-7. 
4
Court's. It is difficult to understand how the Court's authority to require Defendants to file 
reports confers upon Plaintiffs the authority to take unlimited discovery. 
Finally, at the end of their Opposition, Plaintiffs assert that their discovery rights are also 
not constrained by the APA because the equity jurisdiction of the Court is equivalent to that of 
the "High Court of Chancery in England at the time of the adoption of the Constitution and the 
enactment of the original Judiciary Act, 1789." Opposition at 14 (quoting Grupo Mexicano de 
Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999)). Of course, in chancery 
courts in 1789, the parties were not authorized to take discovery depositions. See 8 Wright, 
Miller & Marcus, Federal Practice & Procedure: Civil 2d § 2002, at 51-2 (2d ed. 1994) ("Before 
1938 there were several provisions for depositions in the federal courts but they were intended 
only for the preservation of proof; any discovery that resulted was only accidental and 
incidental."); Katie Eccles, Note, The Agent Orange Case: A Flawed Interpretation of the 
Federal Rules of Civil Procedure Granting Pretrial Access to Discovery, 42 Stan. L. Rev. 1577, 
1593-95 (1990); see generally Stephen Subrin, Fishing Expeditions Allowed: The Historical 
Background of the 1938 Federal Discovery Rules, 39 B.C. L. Rev. 691 (1998). Application of 
the equity rules for chancery courts in 1789 would thus bar the depositions noticed by Plaintiffs. 
Nevertheless, the Federal Rules of Civil Procedure govern this case. Fed. R. Civ. Proc. 1 ("These 
rules govern the procedure in the United States district courts in all suits of a civil nature whether 
cognizable as cases at law or equity . . . ."). Plaintiffs' request to adopt 1789 equity rules must be 
rejected. 
5
For these reasons, and for the reasons in Defendants' Motion for Protective Order, the 
Motion should be granted. 
Dated: February 7, 2005 
CONCLUSION 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
6
CERTIFICATE OF SERVICE 
I hereby certify that, on February 7, 2005 the foregoing Defendants' Reply in Support of 
Motion for a Protective Order Regarding Plaintiffs' Notices of Deposition of Hord Tipton, Brian 
Burns, Pat Moloney [Sic], Thao Le, and John Messano was served by Electronic Case Filing, 
and on the following who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
BY FACSIMILE 
January 3, 2005 
John J. Siemietkowski 
Civil Division 
U.S. Department of Justice 
P.O. Box 875 
Washington, D.C. 20044-0875 
Re: Deposition Notices Served on Messrs. Tipton, Burns, and Maloney. 
Dear Mr. Siemietkowski: 
This is in response to your letter to me of this date concerning notices served on the 
Department of Justice for the deposition of Messrs. Tipton, Burns, and Maloney. 
In that regard, you demand that plaintiffs explain the scope of the depositions to be taken 
and suggest that you may attempt to block their deposition and, thereby, deprive plaintiffs and this 
Court of information that is probative to these proceedings. 
First, as you know, the trustee-delegates and their counsel have been engaged in the 
systemic spoliation of electronic and hard copy trust records in breach of trust and in violation of 
law, federal rules, and Court orders. Second, the nature and scope of this spoliation and its 
impact on the Cobell class has been concealed by the trustee-delegates and their counsel. Third, 
such spoliation and its coverup is, in the opinion of plaintiffs’ counsel, continuing malfeasance. 
Fourth, such spoliation necessarily includes Individual Indian Trust (“Trust”) records, records that 
qualify both as “federal records” and Trust assets. Fifth, the deponents are believed to have 
information relevant to the trustee-delegates’ conduct vis-a-vis the preservation and protection of 
electronic records. Sixth, such information is relevant to this litigation. Seventh, the trusteedelegates 
and their counsel have made representations to the Court concerning the preservation 
and protection of such records that are of grave concern to plaintiffs. 
Therefore, plaintiffs intend to depose Messers. Tipton, Burns, and Maloney to obtain 
information on all matters relevant to this litigation in accordance with federal rules and intend to 
ask them questions that could lead to the discovery of information that has been concealed from 
plaintiffs and this Court. If you choose to obstruct plaintiffs’ efforts, we will be forced to seek 
sanctions to enforce our clients’ rights and protect them from the harm that the trustee-delegates 
and their counsel unconscionably force them to endure. 
Dennis M. Gingold 
Box No. 6 
607 14th Street, N.W. 
Washington, D.C. 20005
I trust that this is response to your inquiry and that you will produce Messers. Tipton, 
Burns, and Maloney at the time and place set forth in their notices. Have a good day. 
Very truly yours, 
/s/ Dennis Gingold 
Dennis M. Gingold 
For the Cobell plaintiffs