IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA t s ELOtTISE PEPION COBELL, gt al., No. 1 :96CV01285 (Judge Lamberth) Plaintiffs, V. GALE A. NORTON, Secretary of the Interior, al., Defendants. ) ) 1 1 1 1 1 INTERIOR DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL ANSON BAKER’S DEPOSITION AND THE PRODUCTION OF DOCUMENTS RELATED THERETO On August 21, 2003, Plaintiffs served on Interior Defendants’ counsel a notice of deposition of non-party Interior employee Anson Baker that included document requests (collectively, “Anson Baker Discovery”). On September 22, 2003, Interior Defendants filed a Motion for a Protective Order fi-on1 the Anson Baker Discoveqr. On September 23, 2003, Defendants served on Plaintiffs a Response to Plaintiffs’ Notice of Deposition and Request for Production of Documents, Dated August 21, 2003 (“Response to Anson Baker Document Requests”) (attached as Exhibit I), in which Defendants asserted objections to the Anson Baker document requests pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure. On October 3, 2003, Plaintiffs filed a Motion to Compel Anson Baker’s Deposition and the Production of Docunients Related Thereto (“Motion to Compel”). ’ 1! Plaintiffs merged in a “consolidated” paper their Opposition to interior’s Motion for a Protective Order with their own Motion to Compel the Anson Baker Discovery. Interior filed a Reply in Support of the Motion for Protective Order on October 14, 2003. Plaintiffs’ Motion to Compel conspicuously omits any reference to the Response. The Response raised numerous general and specific objections. Two of the general objections were substantially equivalent to the issues established in Lnterior’s Motion for Protective Order: (1) under the Federal Rules of Civil Procedure all discovery is currently unauthorized in this case; and (2) the Anson Baker Discovery is unrelated to any justiciable issue in this case and not reasonably calculated to lead to admissible evidence. Motion for Protective Order; Response to Anson Baker Document Requests. Although neglecting to inform the Court that these objections had been raised in the Response, Plaintiffs discussed these issues in their consolidated Opposition and Motion to Compel and Interior responded to their arguments in its Reply, which is incorporated by reference here. No further discussion of these two general objections is needed.2 Interior also raises other general and specific objections in its Response which Plaintiffs do not even address in their Motion to Compel. For example, Interior asserts that the requests are “over broad, vague, and impose an undue burden and/or expense.” Response at 4; see also id. at 6-7 (Objections to Request Nos, 1-3). Because Plaintiffs fail to inform the Court about Interior’s objections and fail entirely to contest those objections, the Motion to Compel should be denied.l On October 15, 2003, Plaintiffs filed a Notice of Supplemental Authority in Support of the Motion to Compel. This Notice was improperly filed without seeking leave of Court and does not cite to any “authority,” supplemental or otherwise. Instead, the non-authority attached to the Notice consists of a letter from Mr. Ervin Chavez, President of the Shii Shi Keyah Allottee Association (Navajo), to the Bureau of Indian Affairs, the unverified contents of which only reinforce that appraisals are related to asset nianageinent - a proposition not in dispute. Plaintiffs also neglected to discuss the Response at all with counsel for Defendants prior to filing the Motion to Compel. 2 If Plaintiffs improperly raise arguments related to the objections asserted in Defendants’ Response for the first time in a reply supporting their Motion to Compel - and the Court is inclined to consider any such tardy argument - Interior will request authority to file a surreply to respond. For the Court’s benefit in denying the Motion to Compel, however, Interior has attached declarations supporting the objection that complying with the overbroad requests would impose an undue burden, as asserted in the Response. See Declaration of Gabriel Sneezy (October 16,2003) (attached as Exhibit 2); Declaration of Janet Goodwin (October 17, 2003 (attached as Exhibit 3); Declaration of Thomas Lonnie (October 17, 2003)(attached as Exhibit 4). Dated: October 17, 2003 CONCLUSION For these reasons, Plaintiffs’ Motion to Compel should be denied. 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 D.C. Bar No. 261495 Deputy Director JOHN T. STEMPLEWICZ Senior Trial Counsel PHILLIP M. SELIGMAN Trial Attorney Cormnercial Litigation Branch Civil Division P.O. Box 875 3 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BLOUISE PEPION COBELL, al., gt Plaintiffs , V. 1 1 1 1 1 ) GALE NORTON, Secretary of the Interior, al., gt Defendants . deposition of Anson Baker; SO ORDERED. Date: 1 ) ) ORDER This matter comes before the Court on Plaintiffs’ Motion to Compel Anson Baker’s Deposition and the Production of Documents Related Thereto [Dkt. #23 181. Upon consideration of the Motion, the responses thereto, and the record in this case, it is hereby ORDERED that the Motion to Compel is DENTED; it is further ORDERED that the Plaintiffs are precluded from deposing Anson Baker at this time; ORDERED that Defendants need not produce the documents requested in the notice of ROYCE C. LAMBERTH United States District Judge Case No. 1:96CVO1285 (Judge Lamberth) cc: Sandra P. Spooner John T. Stemplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 5 14-9 163 Dennis M Gingold, Esq. Mark Kester Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, DC 20005 Fax (202) 3 18-2372 Keith Harper, Esq. Richard A. Guest, Esq. Native American Rights Fund 1712 N Street, NW 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 17 17 Pennsylvania Avenue, N. W. 13th Floor Washington, D.C. 20006 (202) 986-8477 Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 5941 7 (406) 338-7530 Rod Lewis, Esq. Davis, Wright & Tremaine, LLP 1300 SW Fifth Avenue, Suite 2300 Portland, Oregon 97201 -5630 (503) 778-5299 IN THE UNI’L’ED STATES DISTRICT COUR’T FOR THE DISTRICT OF COLUMBLA ELOUISE PEPTON COBELL, al,, Plaintiffs, V. Case No. 1:96CV01285 Defend ants. 1 ) 1 1 1 GALE A. NORTON, Secretary of the Interior, gj &,) . I DEFENDANTS’ RESPONSE TO P1,ATNTlFFS’ NOTTCE OF DEPOSlTlON AND REOUEST FOR PRODUCTION OF DOCUMENTS, DATED AUGUST 21,2003 Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Defendants provide this rcsponsc (”Rcsponsc”) to thc Rcqucst for Documents propounded as part of Plaintiffs’ Notice of Deposition and Request for Production of Documents concerning Anson Baker, dated August 2 1, 2003 (“Rcquests”). This Response reflccts thc Dcfcndants‘ good faith diligent cfforts to considcr and investigate the subject matters covered by the Requests and to respond to each of thc requests within the allotted time. The stateriients made herein are based upon the infomiation known as of the date of this response and are subject to correction, modification and supplcmentation if and when additional relevant infomalion becomes known to a Defendant. The Requesls as propounded seek production of documents responsive to one or more of eight enumerated individual requests. All of these requests arc subject to one or niore objections, which are asserted bclow. Gcncral Objections arc objcctions that apply to cach and every one of these Kcquests and are to be read as forming an integral part of thc response lo each individual request EXHIBIT 1 Defs’ ODD^ to Pllfs’ Motion to Compel A&n Baker Depo & RFP GENERAT, OBJECTIONS TO REOUEST FOR DOCUMENTS Defendants objcct to the Kequests as a whole because this set o f discovery 1. requests violales Federal Rule o f Civi I Procedure 26(g)(Z)(B)&(C). This nile provides that a signed discovery request, served by a party, constitutcs a ccrtification that thc rcqucsts are "not interposed for m y improper purposc, such iis to harass" and that the requests are "not unrcasonahlc or unduly burdensome or expensive" to fulfill. The Requests, however, violate lhese standards. The Requests were propounded after trial of Phase 1.5 has concluded and before any confcrcricc has bccn hcld to set a schedule for any discovery that will be perniitted for any future trial phase in this case. More important, the Requests seek discovery of' information conccrning rnalters that are beyond the subject rnattcr of this case and, thus, beyond the subject matter jurisdiction of the Court to entertain and Plaintiffs' authority to investigate. The Requests also seek personal and privatc records concerning such things as Anson Baker's ernploymcnt percorniance, pcrsonal finances, and incomc taxcs, even though Mr. Raker is neither a party dcfendant in this Litigation nor been shown to tiavc cngaged in conduct that would make the rcqucstcd personal information either relevant to any chim or defense or reasonably likely to lead to discovery of admissible evidcncc. Sevcral parts of the Requests are unbounded as to time and would require Defendants to search for potentially responsive documents possibly dating back more than one hundred years. Thus, the Requests are patently "unreasonable" within the meaning of Rule 26 and "unduly burderisorrie and expensive" on their face, and Plaintiffs' counsel should have been aware of the uiu-easonable and burrtensome character of thc Requests prior to serving thcni. -2- ‘I’hese Requests (a) seek information to annoy and harass Defendants andor their eniployee(s); (b) are neither relcvant to any subjcct matter properly within this case nor reasonably calculated to lead to the discovery of admissible evidcrice, and (c) seek to impose an undue burden and expense upon Defendants to conduct discovery that is not presently permitted, as notcd abovc. On information and belief, Plaintiffs’ courisel were or should have been aware that discovery is not pennitted at tliis time, and that the Requests are obviously over broad, would impose undue burden on Defendants arid seek documents for thc ultcrior purposes of enibarrassment, oppression andor harassment. 2. Defendants object to the Requests to the cxtcnt they seek, or could be construed as seeking, information or documents protected by the attorneyclient privilege, work product privilege, deliberative process privilege, thc right to privacy under applicable law, any joint dcfcnsc, common interest or party cornniunications pnviIcge. investigative privilege, or any other applicable privilege, doctrine or right that would make the in formation or documents immune from discovei-y. Any inadvertent production of infomiation protected by any of thcsc privileges, doctrines, or rights sliail not be deemed a waiver of thc protections that those privileges, doctrines, or rights afford. Defendants object to the Requests to the extent they seek duplicate discovery of 3. any documents already produced or made available by any Lkfcndant in response to a prcvious discovery request or as part of a court subniission with which Plaintiffs wcre served (including submissions to the Court’s appointed judicial officers). Defeiidarits ob-ject lo the Requests to thc extent that they seek production of 4. documents that are not within a Defendant’s possession or control. Without limiting lhe scope of -3- this objection, some Requests appear to seek production of documents that, if they exist, may be in lhe possessioii of Executive Departments beyond the control of Defendants; still others may be permanently maintained by the. National Archivcs and Records Administration, but such documents are public records and not within the possession, custody, or control of Defendants. Finally, some of the Requests seek docunients that are personal records of Mr, Baker (e.g., bank statements, credit card statemertts, pcrsoiial correspondence) over which Defendants have no control. Defendants object to thc Kcquests to the extent thcy scck irifor~riation thai is Defendants object to each of the Requests to the extent that they seek information Defendants object to Rcquests that seek production of ‘‘all’’ docurrients that 5 . beyond the scope of this litigation and not reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26. 6. covered by thc Privacy Act, but not within the scope ofthe Order entered November 27, 1996, or the scope of any other applicable statute or order. In addition, Defendants object to thc Requests to the cxtcnt that they seek documents containirig corifidential business information belonging to third parties, tribes, contractors or the regulated comniunity or information that, if publicly released, could compromise Defendants’ regulatory or enforcement activi ties. 7. “directly or indirectly relate to, refer to, or embody” a particular identified topic on the grounds that such requests are over broad, vague, and impose an iinduc burden and/or expensc. Defendants object to the Rcquests as oppressivc and unduly burdensornc to the 8. extent that they seek to impose, individually or collectively, an obligation on any Defendant to scarch for documents ~ithoiit any limitation as to date or age. -4- 9. Defendants object to the Kequesk to the extcnt that thcy scek any electronic data, including e-rnail records, that are stored on system back-up tapes; such back-up tapes are uscd for restoration of information in case. of system failure and are riot designed nor used to archive or retrieve selected information. Defendants further object to these Requests to the ex tent they seek to require any order. 10. Defendant to contact and/or discuss issues in this litigation with class members contrary to Court 1 I . Defendants also assert their ongoing objection to all discovery by Plaintiffs gcncrally, bascd upon the fact that the O,Z!~J relief sought in this case is under the Administrative Procedure Act. IS. Finally, Defendants object to all o f these Requests to the extent that Plaiiitiffs seek to impose on any Defendant the fir11 cost of retrieving, producing and/or duplicating responsivc documents. Defendants, as a prerequisite to producing or making available for inspection and copying responsive documents, niay require Plaintiffs to advance their reasonablc and fair share of the cost of that undertaking, in an amount and manner agreeable to both sides. Reauest 1 RESPONSES TO THE HEOUEST FOR DOCUMENTS Without waiving the foregoing objections and subject lo them, Defendants rcspond to each individual request as follows: All documents, including without limitation memoranda, handwritten notes and marginah, calendars, diaries, appoiiitnicnt books, schedulers, planners, Day-Timers, time records, voice mail, cniail, and the like, all hard copy documents, and electronic documents housed in, or created on, computcrs OT personal digital assistants, whcther thc computers are owned or leased by the -5- government, its agents, ernployccs, Mr. Bakcr or any other individual or other entity, and any draffs thereof, which directly or indirectly refate to, rcfcr to, or embody material regarding the appraisal of individual lridian allotted and tribal land. Ob-icctions: Dcfcndants incorporatc by rcfcrcnce their General Objections above and firther object to this request on the grounds that the description of docunicnts requested, and in particular the phrase “directly or indirectly relate to, refer to, or embody” is over broad, vague and ambiguous. Defendants also object on the basis that the request seeks discovery concerning the “appraisal” of both allotted and tribal lands which is vague and ovcr broad; the request does not define “appraisal” or identify any particular appraisal topic, nor does it limit the requcst to a spccific pcriod of timc. Finally, as noted above, the subject matter of thc request is not relevant to any claim or dcfcnsc in this case nor is it rcasonably calculated to lead to discovery of admissible evidence. The Request may also improperly seek discovery of privileged documents or material protected by the Privacy Act or other confidentiality statutc. as noled above. Any documents including legal opinions, memoranda, instructions or other material rclicd upon by Mr. Baker or any individuals under his supervision tiow or in the past which address or relate in any way to the appraisal of individual Indian trust lands or tribal trust lands, including but not limited to governing policies or standards for any such appraisal activities. Obiections: Defendants incorporate by reference their General Objections above and further object lo this request on the grounds that the description of documents requested, and in particular the phrase “directly or indirectly relate to, refer to, or embody” is over broad, vague and anibiguous. Defendants also object on thc basis that the request seeks discovery concerning the “appraisal” of both allotted and tribal lands which is vague and over broad; the request does not define “appraisal” or identify any particular appraisal topic, nor does it limit the request to a -6- specific period of time. Finally, as noted above, the subject matter of the request i s not relevant to any claim or defense in this case nor is it reasonably calculated to lead to discovery of admissible evidence. The Request also appears improperly to seek discovery of privileged documents or material protected by the Privacy Act or other confidentiality statute, as noted above. Request 3 All documents, including without limitation memoranda, handwritten notes and marginatia, calendars, diaries, appointment books, schcdulers, planners, Day-Timers, time records, voice mail, email, and the like, all hard copy documents, and electronic documents housed in, or created on, computers or persorial digital assistants, whether the computers arc owned or leased by the government, its agents, employees, Mr. Baker or any other individual or other entity, and any drafts thereof, which embody, refer to or relate to any conununication between Mr. Baker and any third-party lcssee or contractor - including, but not liniitcd to any agcnt, rcprcscntativc or any other direct or indirect intermediary of such third-party lessee or contractor - of individual Indian trust assets. Obiections: Defendants incorporate by reference their General Objections above and further object to this request on the grounds that the description of documents requested, and in particular the phrase “directly or indirectly relate to, refer to, or embody” is over broad, vague and ambiguous. Defendants also object on the basis that the request seeks discovery of any communications conccming “individual lndian tnist asscts” which is not dcfincd and so is vague, ambiguous and over broad. It is also over broad and objectionable to the extent it does not limit the request to a specific period of time. Finally, as noted above, the subject matter of the request is not relevant to any claim or defense in this case nor is it reasonably calculated to lead to discovery of admissible evidence. The Request may also seek discovery of privileged documents or material protected by the Privacy Act or other confidentiality statute, as noted above. -7- Rcqucst 4 A resume or citrrirulum vitm, licences, and professional certifications of Mr. Baker. Obiections: Defendants incorporale by reference their General Objections above and further object to this request on the grounds that the iiiateriaIs sought contain matter subject to thc Privacy Act and that Mr. Baker’s appraisal work i s not relevant to this case and is not within the scope of discovery of this case pursuant to Fcderal Rule of Civil Procedure 26. The request is also unlimited as to time and type ofrecord and is, therefore, over broad. All documents, whcthcr in hard copy or electronic format - including all rncmoranda, voice mail, email, handwritten notes and niarginalia - that relate to, refer to, or embody, directly or indirectly, gerierally or specifically, and infornial or foniial, disciplinary or persomiel action, threatened disciplinary or personnel action, investigations, examinations, assessments or adverse or critical perforniance reviews “(“Professiona I Evaluations”) concerning Mr. Baker or any employee under his supervision. Obiections: Defendants incorporate by reference their General Objections above and further object to this request on thc grounds that the materials sought contain matter subject to the Privacy Act and that Mr. Baker’s job performance and personnel records, as well as those of “any employee under his supervision,” arc not relevant to this case and are not within the scopc of discovery of this case pursuant to Federal Rule of Civil Procedure 26. Thc rcqucst is also unlirtiitcd as to time and lype of record and is, therefore, over broad. Request 6: All federal and state tax returns for Mr. Raker since calendar year 1983, including but not limited to, all supporting documentation for such returns. Obiections: Defendants incorporate by reference thcir General Objections above and further object to this request 011 the grounds that the materials sought contain matter subject to the Privacy Act, as well as other confidentiality statutes, and that Mr. Baker’s tax returns are not relevant to this case or within the scope of discovery of this case pursuant to Federal Rule of Civil Procedure - 8- Request 7: All communications by and between the Tntemal Revenue Service and Mr. Raker since catcndar year 1983. Objections: Defendants incorporate by reference their General Objections above and further object to this request on the grounds that the materials sought contain matter subject to the Privacy Act, as well as other confidentiality statutes, and that Mr. Baker’s communications with the IRS are not relevant to this case and are riot within the scope of discovery of this case pursuant to Federal Rule of Civil Procedure 26. The request is also unlimited as to the subject of the communication and is, therefore, over broad. Rcaucst 8: All bank statements, bank books, credit card statements, personal financial statements, checking account statements, savings account statements, mutual fund statements and all other statements which embody, reflect, or relate to assets or investments made or held by Mr. Baker, iticluding those assets hcld or invcstcd on behalf of Mr. Baker in the possession of agents, representatives or any other third party since 1983. Objections: Dcfcndants incorporate by reference their General Objections above and further object to this request on the grounds that the matcnals sought contain matter subjcct to thc Privacy Act and that Mr. Baker’s personal finances are not relevant to this case and are not within the scope of discovery of this case pursuant to Federal Rule of Civil Procedure 26. Furthermore, Dcfcndants do not collect such personal financial records of employees in the ordinary conduct of their business and so it would be unreasonable and irnduly biirdensome to require Defendants to search for such docunients September 23,2003 Respectfully submitted, ROBERT D. McCALLUM, JR. Associate Attorney General PETER D. KETSLER Assistant Attorney General STUART E. SCHFFEK Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director *%&&..(T&&- $& SANDRA P. SPOONER D.C. Bar No. 26 I495 STEMPLEWIC'Z Deputy Director JOHN 'l'. Senior Trial Attorney MICHAEL J. Q U I " D.C. Bar. No. 401376 Trial Attorney Commercial Litigation Branch Civil Division P.O. BOX 875 Bcn Franklin Station Washington, D.C. 20044-0875 (202) 5 14-7 194 -10- CERTIFICATE OF SERVICE I declare under penaity of pejury that, on September 23,2003 1 served the foregoing Defenrliinis ' Response to Plaintiffs' Notice of Deposition arid Request for Production of Docurncnis, Duled Augiw'i 21, 2003 by facsimile in accordance with their writtcn request of October 3 1,2001 upon: Keith Harper, Esq. Native hmerican Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2376 (202) 822-0068 Pcr the Court's Order of April 17,2003, by facsimilc and by U.S. Mail upon: Earl Old Person (Pro se) Black feet Tribe P.O. Box 850 Browning, MT 594 17 (406) 338-7530 Dermis M Gingold, Esq. Mark Kcstcr Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 (202) 318-2372 By U.S. Mail upon: Elliott Levitas, Esq 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 r ~ * h * * X + * * * ~ O X * * * X X Y X r $ Y * * X O * X * 09/23/2003 18: 14 FAX 2023050097 1252 12 TX/RX NO PGS . __--- [ 561914063387530 TX/RX INCOMPLETE TRANSACTION OK ERROR INFORMATION [ 5 8 193182372 [ 59198220068 ~~ FROM: Depaitment o f Justice Civil Division Fax No. (202) 353-3565 Voice No. (202) G 16-9668 SENT BY: Kevin Kingstoil Law Clerk Labat-Anrlersnn, hc. DATE: COBELL-MAIN *** MULTI TX/RX REPORT *I;* - X * * * * * 8 ~ * * * * * Y * X % S t S * ~ ~ ~ * ~ * * * * (406) 338-7530 --I-- September 23,2003 Mark K. Brown Dennis M. Gingold Earl Old Person TO: FAX NO. (202) 822-0068 (202) 318-2372 Keith Harper NUMBER OF PAGES SENT (INC1,UDING COVER PAGE): 12 Defendants ’Response to Plcrintlffs ‘Notice of Depositiort trod Request for Production of Documents, Dated August ZI, 2003 IMPORTANT This facsimi1e.k hitended only for the use of the hdividual or entity to whiizit i s addressed. It ’nay contain infomiation that is privileged, confidential, or otherwise protected from disclosure ulrder applicable law. If thc rcader of this: ~ansn~Jssion i s not the intended recipient or rlle employee cc agent rcspunslble for deliveling the ___^____-_I. g 001 OLD PERSON CINCO1.I) 1LARl’li:K _.- ELOUTSE PEPION COBELL et.al., GALE NORTON, Secretary of the Interior, et.al., 1. 2. 3. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) CaseNo. 1: 96CV01285 Plaintiffs, V. (Judge Lamberth) ) ) ) Defend ants DECLARATION OF GABRIEL SNEEZY I, Gabriel Sneezy, am the Acting Director of the Office of Appraisal Services of the Office of the Special Trustee (OST), United States Department of the Interior. As the Acting Director, I am responsible for the management of the Office of Appraisal Services. I have held this position since August 10, 2003. My previous employment was with the Bureau of Indian Affairs (BLA) for 11 years. The last position which I held in the BTA was as Chief Appraiser where I was responsible for providing technical advice to the Director of the Office of Trust Responsibilities. I have reviewed the Notice of Deposition and Request for Production of Documents filed by the Plaintiffs on August 21,2003. I was generally familiar with appraisal processes and filing practices within the Bureau of Indian Affairs at the time I was employed in that bureau. In approximately March of 2002, appraisals for Indian lands were placed under the management of the Office of the Special Trustee for American Indians. Appraisal processes and filing practices did not change significantly. However, in order to make a rough estimate of the level of effort that would be necessary for a search of the documents potentially responsive to this Request from the Plaintiffs, it was necessary for me to rely upon information gathered from a number of individuals. The Office of the Special Trustee is presently responsible for performing and/or reviewing appraisals of lands allotted to individual Indians and tribal lands. The appraisals vary greatly in complexity, depending on the proposed use of the land, and range from those EXHIBIT 2 Defs’ Oppo. to Pltfs’ Motion to Compel Anson Baker Depo Rr RFP performed on parcels owned by one or two individuals, to those performed on tracts in which several hundred beneficiaries have an interest. Accordingly, the paper and electronic files created during the performance and/or review of appraisals can vary from several pages of paper and little or no electronic data, to voluminous files of paper and many floppy disks and compact disks of digital photographs, charts, and graphs. 4. The first item of the Plaintiffs’ Request for Production appears to request all documents in the Department of the Interior which relate to appraisals of Indian lands. Following is a broad assessment of the effort that would be necessary to search for documents that would be potentially responsive to the first item. This statement is based on information compiled by others in the Office of Appraisal Services in response to inquiries from the Office of the Solicitor. a. b. c. Appraisal files in 12 offices of OST Regional Appraisers would need to be searched, as well as appraisal files in the Office of Appraisal Services of the Office of the Special Trustee in Albuquerque, New Mexico. According to information compiled by appraisal staff, the estimated number of cubic feet of paper appraisal documents which are located in these 13 locations is approximately 1,500 cubic feet. Appraisal reports and other appraisal-related documents are sent to BIA agency offices, where they are generally not segregated as such, but rather kept in a variety of types of files pertaining to the project for which an appraisal was needed or considered: leases, rights of way, permits, etc. Additional appraisal-related documents may be created in these agency offices which would not be found in the OST Regional Offices. There are approximately 82 BIA agency offices in which appraisal documents are likely to be found scattered throughout various categories of files. Because appraisals and appraisal-related documents are not filed as a distinct category of documents in a single location within the office but rather scattered throughout other types of files, I cannot estimate with any degree of accuracy the volume of responsive documents that may be located in the agency offices. The effort that would be required by agency employees to perform a search for such documents, would entail searching all lease, right of way, permit, and other types of files that may contain appraisal-related documents; and such an effort would likely require thousands of employee-hours. The foregoing statements in paragraphs “a” and “b”are made in general with regard to documents and files currently in the possession of the Office of the Special Trustee and the Bureau of Indian Affairs. Older files, some of which are likely to include appraisal reports and related documents, have been sent to various Federal Records Centers. Again, because appraisals and appraisal-related documents are often not segregated from other types of documents, but rather were maintained in 2 d. e. Documents potentially responsive to the second item in Plaintiffs’ Request for Production might be found in all or in some subset of the locations described in the foregoing description of the level of effort necessary to respond to the first item in Plaintiffs’ Request for Production. That is, guidance, instructions, policies, and standards, etc. may exist in any office where personnel is or was involved in appraisals on Indian lands, but would not necessarily be located in every such office. Specific documents actually relied upon by Mr. Baker or individuals under his supervision are likely to exist in offices of the two Regions where Mr. Baker has been employed, the Navajo Region and the Northwest Region, but also may exist in other Regions where Mr. Baker was assigned to special projects. I would be unable to attest to actual reliance by any individual upon any specific document. Documents potentially responsive to the third item in Plaintiffs’ Request for Production might be found in any or all of the locations described in paragraph “5” above. In addition, electronic email messages of Anson Baker in all locations where he has worked in the Department, would need to be examined. 5. 6. The foregoing information is not intended to constitute an exhaustive description of all locations within the Department of the Interior where a search for documents potentially responsive to the Plaintiffs’ Request would be necessary, if production of such records were required, but rather to demonstrate the degree of effort that such a search would require. Actual a variety of types of files, I cannot estimate what volume of potentially responsive documents might be recoverable from Federal Records Centers, or that have been recovered by the Department and are now being indexed by the Office of Trust Records. Approximately 37 tribes or tribal organizations have current contracts with the Department of the Interior pursuant to 25 U. S.C. 4501(c)(7)(B) which authorize them to conduct appraisals of allotted or tribal lands. Appraisal reports and related documents potentially responsive to the Plaintiffs’ Request may be found in the files of those tribes or tribal organizations which have undertaken this function. I cannot at this time estimate with any degree of accuracy the volume of potentially responsive documents in the possession of such tribes. However, it is clear that in order to produce whatever volume of responsive documents exist in the files of such tribes, a search would have to be undertaken in each such tribal location. In addition, private contractors performing appraisals both for tribes and for Departmental bureaus, may have responsive documents. 3 production of the documents would of course require extensive copying and other tasks, with related expenses. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Gabriel Sneezy Acting Director of the Office of Appraisal Services Office of the Special Trustee for American Indians United States Department of the Interior Dated: October 16, 2003 4 ELOUISE PEPION COBELL et.al., GALE NORTON, Secretary of the Interior, et.al., 1. 2. 3. 4. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1 Plaintiffs, ) Case No. 1: 96CV01285 V. (Judge Lamberth) 1 ) 1 Defendants a. b. c. DECLARATION OF JANET GOODWIN I, Janet Goodwin, am a Senior Attorney in the Office of the Solicitor, Division of Indian Affairs, United States Department of the Interior. I have held this position for approximately 16 months. I have been employed by the Office of the Solicitor in various other positions for the past 22 years. I reviewed the Notice of Deposition and Request for Production of Documents filed by the Plaintiffs on August 21,2003. I determined that the Office of the Solicitor might reasonably possess documents potentially responsive to the first, second, third, and fifth requests of thc Plaintiffs, and solicited the following information from Headquarters, Regional, and Field Offices: Whether the office has documents potentially responsive to the four requests enumerated above; An estimate of the volume of such documents in each office; and An estimate of the level of effort that would be required to searcldproduce the documents. I received replies for 19 offices, including all of the Regional and Field Offices. The following statements are a summary of the responses which I received: nine of the offices do possess potentially responsive documents, and three more may possess potentially responsive documents. The estimates of volume ranged from a few documents in some offices to others with great volumes. For example, one office listed 72 cabinet file drawers, 87 storage boxes, and 176 boxes in the Federal Records Center which would need to be searched for responsive documents. The estimated employee hours which EXHIBIT 3 Dcfs’ Oppo to Pltfs’ Motion to Compel Anson Raker Depo & RFP would be needed to conduct a search in the Office of the Solicitor came to a total of approximately 1,700 hours. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. ffice of the Solicitor United States Department of the Interior 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL et.al., Plaintiffs, V. (Judge Lamberth) ) ) Case No. 1: 96CV01285 1 ) GALE NORTON, Secretary of the Interior, et.al., ) Defendants 1. 2. 3. a. b. c. DECLARATION OF THOMAS P. LONNIE I, Thomas P. Lonnie, am the Assistant Director for Minerals, Realty and Resource Protection in the Bureau of Land Management (BLM), United States Department of the Interior. I have been in this position for approximately three months. My responsibilities include oversight of BLM’s trust programs. My previous position was Deputy State Director of the Montana State Office, Bureau of Land Management. I have been employed by the BLM for 20 years. The Bureau of Land Management is responsible for providing information upon request related to mineral evaluations for leasing, land sales, and land exchanges, for use by the Bureau of Indian Affairs and the Office of the Special Trustee. I reviewed the Notice of Deposition and Request for Production of Documents filed by the Plaintiffs on August 21,2003, and determined that some offices of the Bureau of Land Management might reasonably possess documents potentially responsive to the first and second requests of the Plaintiffs. The following information was solicited from those offices by BLM staff and by the Office of the Solicitor: Whether the office has documents potentially responsive to the four requests enumerated above; An estimate of the volume of such documents in each office; and An estimate of the level of effort that would be required to searchlproduce the documents. 4. The following statements are based on the responses provided to BLM staff and to the Office of the Solicitor, and concern paper records only: six offices possess potentially responsive documents. The estimates of volume ranged from a few files in some offices to others with significant volumes. For example, one office estimated that it had 10,000 pages and another estimated a full four-drawer filing cabinet; both estimated that over a EXHIBIT 4 Defs’ Oppo to Pltfs’ Motion to Compcl Anson Baker Depo & RFP week of employee time would be required to search and copy responsive documents. The estimated employee time which would be needed to conduct a search for potentially responsive paper documents in the Bureau of Land Management totaled approximately three weeks. Electronic records would have to be searched in all locations where paper records are located. In addition, the Bureau of Land Management has contracted with private contractors for appraisal services. I am unable to provide estimates of the volumes of potentially responsive documents that might be found in the offices of private contractors, but an exhaustive search would necessarily include the same. 16 1/7-03 5 . I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Date @- Thomas Lonnie Assistant Director, Mineral Realty and Resource Protection Bureau of Land Management United States Department of the Interior 2 CERTFICATE OF SERVICE I declare under penalty of perjury that, on October 17,2003 I served the foregoing Interior Defendunts ’ Opposition to Plaint8s Motion to Compel Anson Baker’s Deposition arid the Production ofDocuments Related Thereto by facsimile in accordance with their written request of October 3 1, 200 1 upon: Keith Harper, Esq. Richard A. Guest, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 822-0068 By Facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 171 7 Pennsylvania Avenue, N. W., 13th Floor Washington, D.C. 20006 (202) 986-8477 Per the Court’s Order of April 17,2003, by Facsimile and by U.S. Mail upon: Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 594 17 (406) 338-7530 By U.S. Mail upon: Elliott Levitas, Esq 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Dennis M. Gingold, Esq. Mark Kester Brown, Esq. 607 - 14th Street, NW, Box 6 Washington, D.C. 20005 (202) 3 18-2372 PDF Copy by E-Mail Upon: Rod Lewis, Esq. Davis, Wright & Tremaine, LLP 1300 SW Fifth Avenue, SW Ste. 2300 Portland, OR 9720 1-5630 E-Mail: rodlewis@dwt.com - Counsel for Atzson Baker