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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 1i)R %B t %! Pi! '03 
ELOUISE PEPION COBELL, gt al., )
1 
Plaintiffs, 
1
) 
V. ) Case No. 1:96CV01285 
GALE NORTON, Secretary of the Interior, al., ) 
) 
Defendants. 1 
DEFENDANTS' MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF 
GENERAL COUNSEL AUFHAUSER AND FISCAL ASSISTANT 
SECRETARY HAMMOND AT THE PHASE 1.5 TRIAL 
Pursuant to Rule 104(a) of the Federal Rules of Evidence, Rule 7(b) of the Federal Rules 
of Civil Procedure, and Local Civil Rule 7. I , Defendants respectfully move this Court for an 
order in limine barring Plaintiffs From calling Mr. David Aufhauser and Mr. Donald Hammond 
as witnesses at the Phase I .5trial.' Mr. Aufhauser is Gcneral Counsel for the Department of the 
Treasury, and Mr. Hammond is the Fiscal Assistant Secretary for the Department of the Treasury. 
Because the Phase 1.5 trial concerns the January 6, 2003 plans proposed by the Department of 
the Interior ("Interior") and by Plaintiffs, any testimony elicited from thcsc Department of the 
Treasury ("Treasury") witnesses would be of doubtful relevance to the Phase 1.5 trial. Moreover, 
because Mr. Aufhauser and Mr. Hammond are high-level officials, they may only be called to 
testify under extraordinary circumstances, which do not exist here. Therefore, the Court should 
' Counsel for Defendants has consulted with Plaintiffs' counsel, who opposes this 
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enter an order in limine prohibiting Plaintiffs from calling Mr. Aufhauser or Mr. Hammond as 
witnesses at the Phase 1.5 trial. 
I. Treasury Witness Testimony is Tangential to the Phase 1.5 Trial 
In its 1999 opinion, this Court found that Treasury's sole breach of its fiduciary duty was 
destruction of trust-related documents and having no remedial plan to address that breach. 
Cobell v. Babbitt, 91 F. Supp. 2d 1,49-51 (D.D.C. 1999). In that opinion, the Court referenced 
its August 12, 1999 Order approving Treasury's record retention plan,*adding: "It may very well 
be that the agreement reached in that instance would satisfactorily discharge Treasury's duty to 
retain these documents beyond this litigation." Id.at 51. Because the Phase 1.5 trial does not 
relate to Treasury's record retention policies, which are continuously monitored by the Special 
Master, there is no basis for Plaintiffs to call any Treasury officials as witnesses at trial, let alone 
high-ranking Treasury officials. 
In its September 17,2002 opinion, this Court granted "leave to the Treasury defendant to 
make a pertinent submission [regarding plans for administering IIM trust accounts] . . . . I' Cobell 
v. Norton, 226 F. Supp. 2d 1, 162 (D.D.C. 2002). Unlike the Court's directive to Interior 
Defendants to submit a plan, the Court specifically did not require Treasury to submit a similar 
plan. Consistent with this guidance from the Court, Treasury filed a Memorandum and 
Statement but did not file a separate "plan" on January 6, 2003, "since the role played by 
Treasury is a supporting one in assistance and furtherance of Interior's primary role in IIM trust 
The Court entered the August 12, 1999 Order upon the recommendation of the Special 
Master, Order Regarding Treasury Department IIM Records Retention (Aug. 12, 1999) and with 
the consent of Plaintiffs. Cobell v. Babbitt, 9 1 F. Supp. 2d at 50 ("Treasury has agrced, to 
plaintiffs' satisfaction, to preserve certain enumerated categories of IIM-related trust 
documents.") 
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and IIM trust-related matters.“ Notice of Filing (Treasury Defendant), Jan. 6,2003. Because the 
Phase 1.5 trial concerns the trust reform plans filed by Interior and Plaintiffs on January 6, 2003, 
and because Treasury did not file such a trust reform plan, Plaintiffs have no reason for seeking 
the testimony of Treasury witnesses.’ 
IT. Plaintiffs Cannot Demonstrate Any Basis For Senior Treasury Officials To Testify 
A. High-Ranking Government Officials Cannot Be Called to Testify Absent 
Extraordinary Circumstances 
Even apart from the objections discussed above, Plaintiffs have made no showing that 
Mr. Aufhauser and Mr. Hammond, as high-ranking government officials, should be required to 
testify. As the D.C. Circuit has made clear, “top executive department officials should not, 
absent extraordinary circumstances, be called to testify regarding their reasons for taking official 
actions.” Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575,586 (D.C. Cir. 1985) 
(citing United States v. Morgan, 3 13 U.S. 409,422 (1941)); accord In re United States, 197 F.3d 
310, 313-14 (8th Cir. 1999) (citations omitted); In re United States, 985 F.2d 510, 512 (1 lth Cir. 
1993) (per curiam) (citations omitted) (“the practice of calling high officials as witnesses should 
be discouraged”); In re Office of Inspector Gen., 933 F.2d 276,278 (5th Cir. 1991) (citations 
’In fact, Plaintiffs acknowledged that Treasury’s role in this trial is tangential. In response 
to questions related to a discovery dispute, Mr. Brown stated: “Well, we think that there‘s a big 
difference between Treasury and Interior, and Trial 1.5 is geared primarily to Interior, although 
Treasury may participate, and that Treasury has been - - has not been found in contempt of court 
most recently and we frankly have found much more obstruction on the part of Interior.” 
Telephone Conference with Special Master-Monitor (Jan. 14, 2003) at 7, lines 19-25 (attached 
hereto as Exhibit 1). 
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omited) (“exceptional circumstances must exist before the involuntary depositions of high 
agency officials are permitted”). 
Plaintiffs have made no showing that the testimony of these high-ranking officials is 
necessary to their presentation of any issue related to the Phase 1.5 trial. The description of 
expected testimony found in Plaintiffs’ Witness List merely reads: “Matters concerning 
defendants’ failure and inability to bring themselves into compliance with their trust duties.’‘ 
Plaintiffs’ Pretrial Statement, Witness List (Apr. 22,2003) at 1. Such a generic description of 
Mr. Aufhauser‘s and Mr. Hammond’s expected testimony is a far cry from demonstrating that 
these witnesses “possess information essential to [Plaintiffs’] case which is not obtainable from 
another source.” In re United States, 197 F.3d at 3 14; see also Alexander v. FBI, 1999 WL 
270022, at “2 (D.D.C. Apr. 21, 1999) (citations omitted) (“Litigants should ordinarily be required 
to depose those individuals with the most knowledge of the relevant facts before taking the 
depositions of high-ranking government officials.”) The information plaintiffs seek from Mr. 
Aufhauser and Mr. Hainmond is barely related to the Phase 1.5 trial, let alone “essential” to it.5 
The restriction on compelling testimony of senior government officials applies not only 
to Cabinet officers, but to other officials as well. See, e A , Simplex, 766 F.2d at 586 (precluding 
testimony of Solicitor of Labor, Secretary of Labor’s Chief of Staff, OSHA’s Regional 
Administrator and OSHA’s Area Director); In re United States, 197 F.3d at 3 14 (issuing writ of 
mandamus to prevent compelled testimony of Attorney General and Deputy Attorney General), 
It clearly encompasses the officials called to testify here. 
5 In preparation for the Phase 1.5 trial, Plaintiffs made no attempt to depose Mr. 
Aufhauser, Mr. Hammond, or any other Treasury witness. In fact, neither Mr. Aufhauser nor 
Mr. Hammond participated actively in the development of Interior’sPhase 1.5 plans. 
Declaration of Donald Hammond at $I 5 (attached hereto as Exhibit 2); Declaration of David D. 
Aufhauser at ‘I[ 15 (attached hereto as Exhibit 3). 
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The Court should contrast Plaintiffs’ lack of need for Mr. Aufhauser’s and Mr. 
Hammond’s testimony with Treasury’s need for these two individuals to attend to their other 
pressing duties, which include developing the financial infrastructure for appropriate use of the 
vested Iraqi assets and other financial operations in Iraq as well as developing and implementing 
United States strategies to combat terrorist financing domestically and internationally. See 
Declaration of Donald Hammond at 7 6 (attached hereto as Exhibit 2); Declaration of David D. 
Aufhauser at Ilfi7 - 9 (attached hereto as Exhibit 3). 
B. Attorney Testimony is Highly Disfavored. 
Not only is Mr. AuDnauser a high-ranking official, but also he is an attorney. Plaintiffs’ 
attempt to call a high-ranking government attorney - the General Counsel of the Department of 
the Treasury - fails for the additional reason that attorney testimony is strongly disfavored. 
Indeed, “the mere request to depose a party’s attorney constitutes good cause for obtaining a Rule 
26(c) . . . protective order unless the party seeking the deposition can show both the propriety and 
need for the deposition.” N.F.A. COT. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85 
(M.D.N.C. 1987) (citations omitted); see also Dunkin’ Donuts, Inc. v. Mandorico. Inc., 181 
F.R.D. 208,210 (D.P.R. 1998) (citations omitted); Nianara Mohawk Power Cop. v. Stone & 
Webster Eng’g Corn., 125 F.R.D. 578, 594 (N.D.N.Y. 1989) (citations omitted). 
As the Eighth Circuit has explained, “the increasing practice of taking opposing counsel’s 
deposition [is] a negative development in the area of litigation, and one that should be employed 
only in limited circumstances.” Shelton v. American Motors Corn., 805 F.2d 1323, 1327 (8th 
Cir. 1986); see also Theriot v. Parish of Jcfferson, 185 F.3d 477, 491 (5th Cir. 1999) (citation 
omitted) (“Generally, federal courts have disfavored the practice of taking the deposition of a 
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party’s attorney; instead, the practice should be employed only in limited circumstances.”); 
Rainbow Investors Groun, Inc. v. Fuii Trucolor Mo., Inc., 168 F.R.D. 34, 36 (W.D. La. 1996) 
(citations omitted) (“deposition of opposing counsel is a practice that has long been discouraged 
as disruptive of the adversarial system”). Accordingly, the party seeking to depose another 
party’s attorney has the burden of establishing that: “( 1) no other means exist to obtain the 
information than to depose opposing counsel . . . ;(2) the information sought is relevant and 
nonprivileged; and (3) the information is crucial to the preparation of the case.” Shelton, 805 
F.2d at 1327 (citation omitted); see also Boughton v. Cotter Cop., 65 F.3d 823, 829 (10th Cir. 
1995); Jenninm v. Family Mgmt., 201 F.R.D. 272,277 (D.D.C. 2001); West Peninsular Title Co. 
v. Palm Beach Countv, 132 F.R.D. 301,302-303 (S.D.Fla. 1990) (citations omitted).6 These 
principles apply with equal force to trial testimony. In stating generically that they expect Mr. 
Aufhauser to testify regarding “matters concerning defendants’failure and inability to bring 
themselves into compliance with their trust duties,“ Plaintiffs have failed to satisfy any of those 
three elements. 
Conclusion 
Because the Phase 1.5 trial concerns the January 6,2003 plans proposed by the 
Department of the Interior and by Plaintiffs, any testimony elicited from General Counsel 
‘In United States v. Philip Morris Inc., 209 F.R.D. 13, 17 (D.D.C. 2002), the court 
discussed Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002), and found the 
Pamida decision “makes clear that the three Shelton criteria apply to limit deposition questions of 
attorneys in only two instances: ( 1 ) when trial andor litigation counsel are being deposed, and 
(2) when such questioning would expose litigation strategy in the pending case.“ Although Mr. 
Aufhauser is not involved in the details of the Cobell litigation, he nonetheless supervises the 
litigation in his capacity as General Counsel and is being called to testify about it under oath, 
albeit at trial rather than at a deposition. Therefore, concerns enunciated in Shelton and Pamida 
are still applicable. 
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Aufhauser and Fiscal Assistant Secretary Hammond would be tangential to the trial. Moreover, 
because Mr. Aufhauser and Mr. Hammond are high-level officials, they may be called to testify 
only under extraordinary circumstances, which do not exist here. Therefore, the Court should 
enter an order in limine prohibiting Plaintiffs from calling Mr. Aufhauser or Mr. Hammond as 
witnesses at the Phase 1.5 trial. 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWTCZ 
Senior Trial Attorney 
JOHN J. SEMIETKOWSKI 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 5 14-3368 
(202) 514-9163 (fax) 
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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., 
Defendants. 
)
1 
1 
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) 
) 
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) 
) 
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1 
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Case No, 1:96CV01285 
(Judge Lamberth) 
ORDER GRANTING DEFENDANTS' MOTION 
IN LIMINE TO PRECLUDE THE TESTIMONY OF 
GENERAL COUNSEL AUFHAUSER AND FISCAL 
ASSISTANT SECRETARY HAMMOND AT THE PHASE 1.5 TRIAL 
This matter coming before the Court on Defendants' Motion In Limine to Preclude the 
Testimony of General Counsel Aufhauser and Fiscal Assistant Secretary Hammond at the Phase 
1.5 Trial, and having considered any responses thereto as well as the record, the Court finds that 
the motion shall be GRANTED. 
IT IS THEREFORE ORDERED THAT Plaintiffs are precluded from calling General 
Counsel Aufhauser and Fiscal Assistant Secretary Hammond to testify at the Phase 1.5 trial. 
SO ORDERED this day of ,2003 
ROYCE C. LAMBERTN 
United States District Judge This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Cynthia L. Alexander 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9163 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
Fax (202) 318-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W. 
13th Floor 
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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
- _ _ _ _ _ _ _ _ _ _ _ - x 
ELOUISE PEPION COBELL, 
et al., Case No. 
Plaintiffs, 1:96CV01285 
V. (Judge Lamberth) 
GALE NORTON, Secretary of : 
the Interior, et al., 
Defendants. 
TELEPHONE CONFERENCE WITH 
SPECIAL MASTER MONITOR 
Tuesday, January 14, 2003 
The above-entitled matter commenced at 5 : 5 5 
p . m . and the proceedings were reported telephonically 
and taken down by Stenomask by MARK T. EGAN, CVR-CM, 
and transcribed under his direction. 
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Defendants’ Motion in Limine to 
Preclude Testimony of Genl. 
Aldersori Reportmg Company, Inc. Counsel Aufhauser and Asst. 
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PARTICIPANTS: 
Special Master Monitor: 
JOSEPH S. KIEFFER, ESQ. 
420 7th Street, N.W., # 7 0 5 
Washington, D.C. 20004 
202-248-9543 
On behalf of Plaintiffs: 
MARK BROWN, ESQ. 
Aukamp & Gingold 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
202-661-6380 
KEITH HARPER, ESQ. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 
202-785-4166 
Alderson Reporting Conipany, Inc. 
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APPEARANCES: (Continued) 
On behalf of Defendants: 
TERRY PETRIE, ESQ. 
MICHAEL QUINN, ESQ. 
PHILIP SELIGMAN, ESQ. 
JOHN SIEMIETKOWSKI, ESQ. 
Civil Division 
United States Department of Justice 
1100 L Street, N.W. 
Room 10146 
Washington, D.C. 20530 
2 0 2 - 3 0 7 - 0 2 6 7 
Alderson Reporting Company, Inc. 
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P R O C E E D I N G S 
MR. PETRIE: Let me just take a quick roll 
call. Mark Brown? 
MR. BROWN: Yes, sir. 
MR. PETRIE: Keith Harper. 
MR. HARPER: Yes, I'm here. 
MR. PETRIE: Mark Egan, the Court Reporter. 
THE REPORTER: Yes. 
MR. PETRIE: Okay, great, so we're all 
aboard. 
MR. KIEFFER: And you've got Seligman 
and - - 
MR. PETRIE: I've got Michael Quinn, Phil 
Seligman, and John Siemietkowski. 
MR. KIEFFER: Siemietkowski, okay. 
All right, Mr. Petrie; since you sent me 
the first letter, why don't you start and tell me just 
what's occurred since we talked yesterday on the 
conference call. 
MR. PETRIE: Yes, sir. Sir, we at that 
time, Mr. Quinn and- myself and Mr. Siemietkowski, 
took your advice, your recommendation, to call Mr. 
Balloran and we contacted Mr. Balloran, related to him 
the events of the call with you and that you had 
recommended that we call you - - call him. 
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We did so, and he said that he was going to 
consider the matter and asked if I would have a phone 
number here among the three of us that he could reach 
later that night, last night, if he wanted to address 
the matter further. 
Later that night, I'm just estimating 20, 
30 minutes later, came back to my office a voicemail 
message for me from Mr. Balloran to call him. I did 
so. 
Mr. Balloran at that point asked me if the 
government would find five days acceptable. I asked, 
or took the position that we asked for eight because 
that's what we had needed; we were not engaging in 
sometimes a technique that is used in asking for much 
more time than one would desire and then be content to 
come up with something less than that. 
Mr. Balloran at that point placed me on 
hold and came back a short while later and indicated 
that the eight days was acceptable and that was 
approved. 
MR. KIEFFER: Acceptable to him? 
MR. PETRIE: My understanding was that he 
was tieing that to the Plaintiffs and that he was 
going to approve the motion as a result of that. 
MR. KIEFFER: I thought you were all going 
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to have a conference call with Mr. Balloran. 
Mr. Brown or Mr. Harper, did you have any 
contact with Mr. Balloran? 
MR. BROWN: I did not. 
MR. HARPER: No, but I understand that Mr. 
Gingold on our side did have contact with Mr. Balloran 
and did consent to an extension for the limited 
purpose of the Department of Treasury, which we 
believe is under a - - in a different position than the 
Interior Department both as a matter of record in this 
case and vis a vis the need for any enlargement. 
MR. KIEFFER: Did Mr. Balloran say anything 
to you/ Mr. Petrie, about that issue, or was he just 
saying, I've gotten consent for the eight days for 
Treasury, and l e f t it at that? 
MR. PETRIE: He - - when he indicated that, 
sir, he did not tie it to the motion specifically in 
front of him, in the sense that he did not expressly 
say that it was eight days for the motion that was 
solely in front of him. 
I was remiss. There was one last exchange 
in that call, the second call with Mr. Balloran, and 
what it was was that he suggested that I then send a 
letter to the parties advising them, confirming the 
essence of the decision that had been made. 
Alderson Reporting Company, Enc. 
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Then at that point Mr. Quinn and myself 
Mr. Siemietkowski was not a party to the second. 
Other than the first conversation with Mr. Balloran, 
Mr. Siemietkowski wasnlt a party to the later 
conversations with Mr. Balloran. At that point, after 
we hung up with Mr. Balloran after he asked that we 
send a letter, I and Mr. Quinn called Mr. Harper to 
see if - - to confirm our understanding. And that then 
led to my call with Mr. Harper this morning to discuss 
this further, at which time it became clear that the 
consent by the Plaintiffs was to the effect that Mr. 
Harper described a moment ago. 
MR. KIEFFER: Okay. W e l l , why don't we go 
over to the Plaintiffs here and hear what their 
opposition is or what the difference, what the 
distinction is here between Treasury and Interior. 
Mr. Harper or Mr. Brown? 
MR. BROWN: Well, we think that there's a 
big difference between Treasury and Interior, and 
Trial 1.5 is geared primarily to Interior, although 
Treasury may participate, and that Treasury has been - 
- has not been found in contempt of court most 
recently and we frankly have found much more 
obstruction on the part of Interior. 
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MR. KIEFFER: Well, wait a minute. The 
issue here is they need time to produce their answer 
and produce documents or whatever else. The whole 
emphasis here, the emphasis is on the size of the 
production that they've got to make and what they've 
got to do to find answers to your questions and so on. 
It's not about - - and if Treasury's only tertiarily 
involved in this thing, it must be easier for Treasury 
to come up with whatever they've been asked to produce 
than it will be for Interior. 
My interest is in why Mr. Balloran 
apparently ended up mediating and encouraging an 
agreement on this extension. 
MR. HARPER: Let me clarify the point a 
little bit, Mr. Kieffer, if I could. I think that the 
issue here is that the Defendants are not saying they 
need the enlargement to produce. They're saying they 
need the enlargement and they might produce, and 
they've already listed a series of objections. Our 
view is, hey, let them get those objections out on the 
table. 
MR. KIEFFER: Okay, let's not go into the 
objections now. I went through that yesterday. I 
misspoke. I didn't mean just produce. I mean answer 
your interrogatories and respond to your production 
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request however they're going to respond. IIve read 
the production request and the interrogatories. 
They're very extensive for Interior. I haven't seen 
the Treasury ones. 
MR. BROWN: They're all the same ones. 
MR. HARPER: But our point is they need no 
more time to come forward with their specifics on what 
they are and are not going to produce and on what 
ground they're not going to produce those. In our 
view, the difference and the important difference and 
why we have focused on this issue, this distinction 
between Treasury and Interior, is that the Interior 
has a longer demonstration, a more long-term 
consistent demonstration of bad faith, and if you give 
them more time they will once again, as they have time 
and time again, abuse that, abuse that discretion and 
have us in a situation where we I re further 
disadvantaged than we already are because of their 
resistance to the discovery in so many different ways. 
So we think, look, they need to come up 
with how, what they're going to produce and what 
they're not going to produce, so to the extent that we 
believe it is necessary for us to file the appropriate 
motions that we can do so in short order. If at the 
time what they're saying is they're responding in the 
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original time frame but the actual production effort 
they want a few days extension, that may be 2 
different issue. But that's not what we understanc 
their request involves. 
MR. KIEFFER: Mr. Petrie, what ' s your 
response to that? 
MR. PETRIE: Mr. Kieffer, you know, frankly 
their agreement on the motion before Mr. Balloran 
simply ends the story. Conspicuously silent from Mr. 
Brown's letter that he sent today, misdirected to my 
personal dial number instead of the office fax number, 
a fax number that Plaintiffs have used repeatedly, and 
we only got his letter by checking the Plaintiffs' web 
site, but conspicuously silent from that letter is not 
even a single syllable, much less a sentence, that 
acknowledges the truth that Plaintiffs have consented 
to the eight days requested in an identical motion for 
an enlargement for Mr. Balloran on the same two sets 
of discovery. 
All of the same - - and frankly, they are - 
- baseless arguments that Mr. Brown has posited in his 
letter, as well as those that Mr. Harper has now 
offered here, could have been lodged in an opposition 
to the motion before Mr. Balloran. Tellingly, they 
did not. 
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Frankly, one would almost want to laugh at 
Mr. Brown's unfounded and unreasoned speculation on 
the second page of his letter that somehow the 
Defendants have disrespected you in this matter, when 
the truth of the matter is: one, we have not; and 
two, the ugly fact of the matter is that it is the 
Plaintiffs who have disrespected you, first by their 
effort to play gamesmanship. In consenting to one 
motion before Special Master Balloran and objecting to 
the identical motion before you, they are manipulating 
the process. 
Second, and this is an example, and it's 
prompted by Mr. Brown's remarks yesterday about judge- 
shopping. Plaintiffs know full well that they are not 
able to obtain discovery right now and may not, if 
ever, on the contempt matter involving the named 
individuals before Mr. Balloran. Yet what signal are 
they sending when they attempt to do an end run around 
that prohibition and ask for discovery on the contempt 
matters in this set of discovery before you. 
One wants to laugh but cannot, because 
Plaintiffs apparently tender this disrespect argument, 
caked with mud, with apparently a straight face. 
There is no merit to Mr. Brown's letter. There is no 
merit to these arguments that Mr. Harper has offered 
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here. 
You went to the heart of the matter, Mr. 
Kieffer, and stated and recognized that there is a 
disparate difference in the burdens associated with 
the discovery requests that the Plaintiffs have 
propounded here, and they readily, in whatever manner, 
elected to consent to that motion before Mr. Balloran 
and now, on the same two sets of discovery, they for 
whatever reason choose to oppose the motion before you 
as it relates to Interior. 
Instead of addressing that fact, they 
simply choose to throw mud and not address the fact 
that they have agreed to that extension in the 
Balloran motion. 
MR. KIEFFER: Okay, now I have one question 
for you before we go back and let the Plaintiffs have 
the final word here. 
MR. PETRIE: Yes, sir. 
MR. KIEFFER: That goes to, not disrespect, 
but to your position about my authority. 
MR. PETRIE: Yes, sir. 
MR. KIEFFER: And I've spoken to this 
before. 
MR. PETRIE: Yes, sir. 
MR. KIEFFER: What you're asking me to do 
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right now is to say, is to authorize you eight 
additional business days, There's no time to go to 
the Judge and write a report and recommendation, and I 
doubt the Judge in the last three days' worth of his 
time in town before he goes on vacation is going to 
have the chance to even look at this. 
So unless I can, and I have the authority 
to say to you, as Mr. Balloran has apparently done, 
yes, you can have those days, you're up a creek here, 
Mr. Petrie. 
So I'm going to ask you again: What do you 
think my authority is on this matter, as opposed to 
depositions, as opposed to harassing questions? 
MR. PETRIE: I think that our position 
remains the same as it has been before and that what 
we envision is that by force of your position to be 
able to see if the parties can agree. Mr. Balloran 
L8 apparently was able to strike that balance with the 
19 Plaintiffs as it regards the motion before him and as 
! O it relates to Treasury, and we envision the same sort 
!1 of role here, that you by force of the position that 
! 2 you play, the role that you play, are in a position to 
13 indicate to Plaintiffs in these facts, under these 
14 circumstances, that the appropriate course of action 
5 is to see if they would be willing to consent to that 
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request. 
It's their choice ultimately and we would 
hate to see this thing go the R and R route, but at 
this juncture thatls going to be a product solely and 
simply ultimately as to what decision they make here 
regarding our motion. 
MR. KIEFFER: Let me say one thing here, 
because I did, to add full disclosure here, I did call 
Mr. Balloran today when I got your letter Mr. Petrie, 
because no one had called me to tell me about what had 
happened over with Balloran. So I called him to find 
out on what basis he basically made the decision, if 
he made the decision other than the consent, and there 
wasn't a consent initially, as Mr. Harper and Mr. 
Brown have stated. 
His position basically was - - and I don't 
know if he described it to each of you that this 
eight business days isn't something out of t h e 
ordinary here - - I frankly agree with that - - and that 
there didn't seem to be any games being played from 
what he could tell from talking to the parties 
individually ex parte, I might note. 
In any event, I agree with him. I also 
said to you all yesterday that I wasn't going to have 
inconsistent decisions here and that's why I wanted to 
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coordinate with him and that's why I ended up calling 
him. And I'm of a mind that that eight-day extension 
should be given. I think that, having read the 
discovery and knowing what the Department of Interior 
has, that they have to go through and the people they 
have to talk to to answer it, it's a monumental job. 
I'm surprised you're only asking for eight days, but 
1'11 hold you to that. 
But 1'11 grant that eight days. But before 
I even say that, I want to go back to the Plaintiffs 
for their final position on this and where they stand 
on what my authority is. Mr. Harper? 
MR. HARPER: Well, our view is that you 
have the authority to regulate discovery as per the 
court's September 17th order, and we have not changed. 
Our position has not been modified from that, and we 
will abide by your ruling on these discovery matters. 
We do object and we will not consent to an 
enlargement of time for the Department of Interior, 
who has a demonstrated track record of acting in bad 
faith. Mr. Petrie's arguments that we are somehow 
disrespectful when they have treated you I think what 
has been rightly denoted as a potted plant, is 
laughable. I think that the record is pretty clear on 
that issue without going through all the various 
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nuances of this. 
We will say, though, that we do oppose 
their - - we strongly oppose their seeking enlargement, 
because each and every time theylve done so they've 
abused any allowance that's made to the parties or a 
judicial officer has granted them. 
So we do oppose. We think that 
be clearly demonstrated here is that once 
will abuse it. They won't turn over 
they'll insert frivolous objections, and 
what will 
again they 
documents, 
this will 
just require additional work on our part to fetter out 
all the litigation misconduct. 
MR. KIEFFER: All right. Well, I 
appreciate your position, Mr. Harper. 
MR. BROWN: By the way, Your Honor, they 
still haven't answered your question as to what their 
position is on your authority. 
MR. PETRIE: We did. 
MR. KIEFFER: Y e s , he did. He said it was 
the same. Theylre not changing that. 
And that, Mr. Petrie, gives me a lot of 
problem here, because I've said in a recent letter 
your position you know, Mr. Harper and Mr. Brown 
and Mr. Gingold follow what I tell them to do. And 
15 that's based on your position which you have taken, 
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and I'm not going to go through the history here. But 
it really gives me pain. I try to be fair and 
evenhanded and I think I have been. 
But I think that in some manner I'm harming 
or could harm the Plaintiffs here by doing what is 
fair, based on your position on what my authority is. 
And now you come to me and you want me to get you out 
of a tight spot here, And I'm going to, because 
mainly I believe that it's the fair thing to do and 
Mr. Balloran's already done it or at least gotten 
consent from the Plaintiffs to do it. 
I'm going to give you the eight days and I 
hope that you will respond fully to the discovery 
request. 
MR. PETRIE: I appreciate that, Mr. 
Kieffer. I would simply note - - and this is not to 
get into a protracted dialogue - - but the same sort of 
dilemma exists for the Plaintiffs in the sense that, 
given your take on the legitimacy of the request for 
an enlargement, if they are to abide by their view of 
your authority, that is that in this instance what you 
would determine is appropriate is something that they 
are to be bound by, then in this instance they would 
respect that fact and accept the fact that we've got 
the eight-day enlargement. 
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MR. KIEFFER: Well, they've said they 
would. 
MR. PETRIE: I understand that. I just 
wanted to point that out. 
MR. KIEFFER: They've done that in every 
deposition, every discovery proceeding that I have 
been involved in, and they continue to do that. And 
if it turns out that they're right and it's going to 
harm them, we'll be back here in some manner. And I 
hope it won't, Mr. Petrie. 
MR. HARPER: Mr. Kieffer, if I could, I 
think I need to respond to that, because I think that 
there's not a matter of if it will or whether it will. 
' It has already harmed us. We have been blocked at 
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each deposition from being able to acquire information 
that I think we have report right to because of 
frivolous objections despite your rulings. 
There was even an objection, when you 
clearly indicated that there was no harassment of a 
witness, there was an objection and a direction not to 
answer a question based on harassment of a witness. 
That's the kind of thing that we're talking about 
which creates a very one-sided street here, where 
they're having full ability to depose our witnesses, 
including with documents that they may or may not have 
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produced to us, and we are limited based on frivolous 
objections. 
MR. KIEFFER: Okay. 
MR. HARPER: And at the same time, there's 
no - - we're not even sure how we're going to get to a 
point where these types of clearly, patently unethical 
conduct is going to be something that is reprimanded 
in any serious way. 
MR. KIEFFER: Well, there's two ways you're 
going to do it. You've got a motion before the court 
right now to redepose Erwin and to hold Ms. Spooner in 
contempt for what she did - - or not in contempt; to 
make her pay for the legal fees or whatever. 
Also, if you didn't if that ruling comes 
out, comes in your favor, you would be able to go back 
and ask those questions that you couldn't ask, if you 
were going to take depositions. But I get a letter 
from you yesterday saying you're not going to take any 
more depositions. So there is little I can do to 
augment or to bring you whole again in these 
depositions, depending on what the Judge does, if 
you're not going to take any more depositions. 
MR. HARPER: Well, I think the issue there 
was that we weren't going to take the depositions 
until these issues are resolved, because there's no 
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use in us going into a deposition and each and every 
time we get to the critical question the Defendants 
raise frivolous objections and we're prevented from 
getting the most critical of information. And that's 
where it's been at each and every one of these. 
MR. KIEFFER: Well, I'm not going to go, 
I'm not going to characterize your depositions or how 
much you've been able to do as opposed to what you 
haven't been able to do here. And that's what Mr. 
Petrie was afraid if he mentioned something we were 
going to get into, and I don't want to get into that. 
But there were possibilities, which may be excluded 
now because you're not going to take any more 
depositions. 
But in any event, that's my ruling, 
gentlemen, and I hope that we see in eight business 
days a good production here. 
Anything else? 
MR. PETRIE: That's it from the government, 
sir. 
MR. KIEFFER: All right. Well, thank you 
both. 
MR. PETRIE: Thank you for your time. 
MR. HARPER: Thank you. 
MR. KIEFFER: Bye-bye. 
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(Whereupon, a t 6:17 p - m . , t h e conference 
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INTHE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., )
1 No. 1:96CV01285 RCL 
Plaintiffs, 1 
1 
V. 1 
1 
GALE A. NORTON, Secretary of the Interior, et a]., ) 
1 
Defendants. 1 
DECLARATION OF DONALD HAMMOND 
I, Donald Hammond, hereby declare, pursuant to 28 U.S.C. fj 1746, as follows: 
1. I am currently employed by the Department of the Treasury, as Fiscal Assistant Secretary. 
I have been employed in different capacities at Treasury for a total of almost 20 years and 
have been acting in my current position since January 1998. I report to the Under 
Secretary for Domestic Financc. As Fiscal Assistant Secretary, I lead the Fiscal Service 
and my responsibilities include two Treasury Bureaus: The Financial Management 
Service (FMS) and the Bureau of the Public Debt (BPD). 
2. The Fiscal Service's mission is to develop policy for and operate the financial 
infrastructure of the Federal government, including payments, collections, cash 
management, financing, central accounting, and delinquent debt collection. 
3 . My office provides policy oversight of the Fiscal Service bureaus and develops policy on 
payments, collections, debt financing operations, electronic commerce, government wide 
accounting, government investment fund management, and other issues. The office also 
performs two critical functions for the Department: It manages the daily cash position of 
the governmcnt and it produces the cash and debt forecasts used to determine the size and 
Defendants' Motion in Linlirzc to 
Preclude Testimony of Genl. 
Counsel Aufhauser and Asst. 
Secretary Hammond 
EXHIBIT 2 This is the background image for an Adobe Acrobat Capture page with image plus hidden text.  
timing of the government's financing operations. 
4. In addition, the office represents the Secretary on the Federal Accounting Standards 
Advisory Board, Joint Financial Management Improvement Program, and the Library of 
Congress and National Archives Trust Fund Boards, is a statutory member of the 
government wide Chief Financial Officers Council, and serves as liaison to the Federal 
Reserve system in its capacity as Treasury's fiscal agent. 
5. While I have had a significant management role with regard to Treasury's efforts to bring 
its operations into compliance with the Court's orders in the Cobell litigation, I was not 
an active participant in the development of the plans submitted by Interior to the Court on 
January 6,2003. 
6. Moreover, since early March and for the near future, I have been spending a 
preponderance of my time developing the financial infrastructure for appropriate use of 
the vested Iraqi assets and other financial operations in Iraq. Considering that I did not 
participate in the drafting of Interior's plans, and considering the importance and urgency 
of my work with regard to Iraq, I believe my services are more usefully spent on issues 
pertaining to Iraq at this time. 
I declare uqder penalty of perjury that the foregoing is true and correct. 
K. 
Executed this& day of April, 2003. 
DONALD HAMMOND 
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INTHE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., )
) No. 1:96CV01285 RCL 
Plaintiffs, )
1 
v. 1 
1 
GALE A. NORTON, Secretary of the Interior, et al., ) 
) 
Defendants. 1 
1 
DECLARATION OF DAVID D. AUFHAUSER 
I, David D. Aufhauser, hereby declare, pursuant to 28 U.S.C. 6 1746, as follows: 
1. I am the General Counsel of the Department of the Treasury and have held this 
position since June 1,2001. I was nominated by the President on February 28, 
2001 and confirmed by the Senate on May 26,200 1 to serve as General Counsel 
of the Department of the Treasury. 
2. By statute, the General Counsel is the chief law officer of the Department and, 
together with Assistant General Counsels, carries out the duties and powers 
prescribed by the Secretary of the Treasury. 3 1 U.S.C. 9 301(f)( 1). 
3. Under Departmental regulations, the General Counsel has final authority over 
legal matters within the Department and, as such, has the authority to participate 
in and decide any legal matter within the Department. Treasury Order 107-04,54 
Fed. Reg. 32155-03 (1989). 
4. I am formerly of the law firm of Williams & Connoliy in Washington, D.C., and 
have been a member of the bar of this Court since 1978. 
Defendants’ Motion in Limine to 
Preclude Testimony of Genl. 
Counsel Aufhauser and Asst. 
Secretary Hammond 
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5. I am responsible for the supervision of more than 1200 lawyers within the 
Department of the Treasury, including the legal staff in Treasury offices and 
bureaus. 
6 . As General Counsel and the chief legal officer for the Department, I also am 
responsible for litigation oversight at Treasury. This includes ensuring that the 
Department complies with all court orders and that the Department exercises 
appropriate due diligence regarding the retention and production of records that 
relate to litigation. 
7. Since the terrorist attacks on September 11,2001, I have taken a leading role both 
within the Department of the Treasury and in the Executive branch regarding the 
fight against terrorism, focusing in particular on the disrupting and dismantling of 
terrorist financing. I chair a National Security Council (NSC) sponsored interagency 
policy coordinating committee (PCC) on terrorist finance that includes 
representatives from the Treasury Department, the NSC, the Central Intelligence 
Agency, the Federal Bureau of Investigation, the National Security Agency, the 
Department of Defense, the Department of Homeland Security, the Department of 
Justice, and the Department of State. This group meets formally at least every 
two weeks and is charged with marshaling and deploying the assets of the U.S. 
government to fight global terrorist financing. In addition, I have daily meetings 
devoted to accomplishing the goals of the PCC, including overseeing Treasury’s 
implementation of the decisions made by the PCC. I travel regularly both within 
the U.S. and abroad and meet with representatives of foreign governments to 
share information and enlist their aid in the fight against terrorist financing. 
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8. In addition to these responsibilities regarding the Treasury Legal Division and the 
Administration’s fight against terrorist financing, since March 2003 I have 
assumed responsibility for the Treasury Executive Office for Terrorist Financing 
and Financial Crimes (EOTFFC). This Office is headed by the Deputy Assistant 
Secretary for Terrorist Financing and Financial Crimes, to whom reports a 
Treasury bureau, the Financial Crimes Enforcement Network, as well as 
Treasury’s Office of Foreign Assets Control and its Executive Office of Asset 
Forfeiture. The EOTFFC is charged with: developing and implementing U.S. 
government strategies to combat terrorist financing domestically and 
internationally (in concert with Treasury’s International Affairs Task Force on 
Terrorist Financing); developing and implementing the National Money 
Laundering Strategy, as well as other policies and programs to fight financial 
crimes; participating in the Treasury’s development and implementation of US. 
govenunent policies and regulations in support of the USA PATRIOT Act, 
including outreach to the private sector;joining in representation of the United 
States at focused international bodies dedicated to fighting terrorist financing and 
financial crimes; and developing U.S. government policies relating to financial 
crimes. The EOTFFC will report to the Deputy Secretary of the Treasury in the 
future, but is reporting to me while there is a vacancy in the Office of the Deputy 
Secretary. This vacancy likely will not be filled for a number of months. 
9. Until a Deputy Secretary is confirmed, I also am chairing the Treasury 
Department’sUSA PATRIOT Act Regulation Review Task Force that was 
established by former Deputy Secretary Dam to develop effective regulations to 
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crack down on terrorist financing and money laundering. The Task Force reviews 
the regulations during the drafting and comment stages to determine whether they 
accomplish stated goals but are not unnecessarily burdensome on the financial 
community. While a Treasury led effort, the Task Force consults with public and 
private experts in this area, including appropriate federal regulators such as the 
Securities and Exchange Commission, the Office of Thrift Supervision, the Office 
of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, 
the Commodity Futures Trading Commission, and the Federal Reserve Board, as 
well as industry groups. 
10. Since coming to Treasury, I have ensured that someone under my direct 
supervision directly oversees and manages Treasury’s significant litigation, 
including the Cobell litigation. Specific to this litigation, Brian Ferrell, Chief 
Counsel, Bureau of the Public Debt (and Special Attorney for the Justice 
Department in the Cobell litigation) is responsible for a team of attorneys and 
program staff that ensure that Treasury is abiding by its trust-related obligations. 
Mr. Ferrell has access to the most senior people at Treasury and has access to the 
necessary personnel to perform this assignment. He has unlimited access to all 
Treasury facilities, offices, records and personnel to perform necessary audits, 
monitoring reviews, and investigations, as necessary. Mr. Ferrell has kept me 
apprised of significant events in the litigation and keeps the Court, Special Master 
and the plaintiffs well-informed of actions taken by Treasury that relate to this 
litigation. 
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11. Treasury continues to work with the Special Master, as it has in the past, to assist 
the Special Master in his assessment of Treasury’s trust document retention and 
litigation oversight programs. This assistance will continue to include providing 
access to senior supervisory officials at Treasury, access to training sessions of 
Treasury attorneys and program staff, as well as coordinating access to any 
facilities, offices, and records the Special Master seeks to visit or report upon. 
12. In its September 17,2002 Opinion and Order, the District Court directed the 
Secretarv of the Interior to file, by January 6,2003, a plan for conducting a 
historical accounting of the Individual Indian Money (IIM) accounts as well as a 
plan for bringing the Department of the Interior (Interior) into compliance with 
the fiduciary obligations owed to the IIM beneficiaries. 
13. In that same order, the Court granted Treasury leave so that it might make a 
“pertinent submission” akin to the plan which Interior has been ordered to file. 
14. On January 6,2003, Treasury filed its Statement Regarding the Court’s 
September 17,2002 Opinion and Order in Cobell, et al. v. Norton, et al.. In that 
submission, Treasury informed the Court that Treasury has taken extensive steps 
to fulfill its trust-related obligations but does not have a separate “plan” from that 
of Interior since the role played by Treasury is a supporting one in assistance and 
furtherance of Interior’s primary role in IIM trust and IIM trust-related matters. 
15. To the best of my recollection and belief, during 2002 I attended several highlevel 
meetings at the Department of Justice and/or at the Department of Interior, 
to review the progress of trust reform and the status of the Government’s efforts 
to comply with various Court orders in Cobell. These meetings were chaired by 
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either Assistant Attorney General Robert McCallum, Interior’s Solicitor William 
Myers, or Interior’s Deputy Secretary Steve Griles. I did not, however, 
participate in the drafiing of the January 6,2003 plan. I have delegated principal 
Treasury responsibility for tracking Interior’s compliance plans to Mr. Ferrell. 
I declare under penalty of perjury that the foregoing is true and correct. 
Executed this &day of April, 2003. 
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CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on April 28,2003 I served the foregoing 
Defendants ’Motion in Limine to Preclude the Testimony of General Counsel Aufhauser and 
Fiscal Assistant Secretary Hammond at the Phase I.5 Trialby facsimile in accordance with their 
written request of October 3I , 2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Court’s Order of April 17,2003 
By Facsimile and U.S. Mail upon: 
My Earl Old Person (Prose) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
By facsimile and US. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
(202) 318-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Sean P. Schmergel