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’ MOTION FOR A PROTECTIVE 
ORDER REGARDING PLAINTIFFS’ NOTICE OF 
DEPOSITION OF DAVID L. BERNHARDT 
On November 4, 2003, without any prior communication to counsel for Defendants,1 
Plaintiffs noticed the deposition of David L. Bernhardt, Director, Office of Congressional and 
Legislative Affairs, Department of the Interior, for November 14, 2003 (“Notice of Deposition”) 
(attached as Exhibit 1). Plaintiffs are not permitted to depose Mr. Bernhardt because they are not 
entitled to any discovery at this time. Moreover, discovery from Mr. Bernhardt would not be 
within the scope of permissible discovery under Fed. R. Civ. P. 26(b). Accordingly, pursuant to 
Fed. R. Civ. P. 26(c), Defendants move for a protective order preventing the noticed deposition 
of Mr. Bernhardt.2 
1/ In noticing Mr. Bernhardt’s deposition without any prior communication regarding availability 
of the deponent or his counsel, Plaintiffs have ignored the Court’s admonition that counsel 
should confer regarding the scheduling of depositions. See Order of May 8, 1998; Transcript of 
November 6, 1998 Hearing at 2 (“I don't know what's happened to the notion that I was trying to 
set forth in May about civility, but I don't think that the plaintiff should have noticed those 
depositions without a discussion about dates with the defendants first”) (attached as Exhibit 2). 
2/ As required by Fed. R. Civ. P. 26(c), and Local Rule 7(m), counsel for Defendants conferred 
with counsel for Plaintiffs on November 5, 2003 in an attempt to resolve this dispute without 
Court action. Plaintiffs expressed an intent to oppose the relief requested here.
ARGUMENT 
NO DISCOVERY IS PERMITTED AT THIS TIME I. 
Plaintiffs are not authorized to take any discovery at this time. Fact discovery for the 
Phase 1.5 trial closed on March 28, 2003, the trial itself was concluded over three months ago 
and the Court ruled upon the issues raised therein on September 25, 2003. Plaintiffs have not 
sought leave of Court to take discovery out of time, and there is no indication in the Court's 
October 17, 2002 Phase 1.5 Trial Discovery Order that the Plaintiffs were authorized to conduct 
roving discovery after Trial 1.5. 
In addition, nothing in the structural injunction issued by the Court on September 25, 
2003, provides for further discovery. The Court's injunction establishes a series of deadlines 
through September 30, 2007, for the Department of Interior to perform specific tasks. Under the 
schedules established by the Court's September 25, 2003 orders, a Phase II trial is likely, and it is 
possible that there will be discovery associated with it.3 However, there is no discovery order 
setting a discovery schedule for a Phase II trial. 
Nor are there other proceedings before the Court requiring discovery. Even if the noticed 
deposition of Mr. Bernhardt were purportedly related to some future proceeding in this case, the 
parties have not held a discovery planning conference pursuant to Federal Rule of Civil 
Procedure 26(f) and, therefore, Plaintiffs are not authorized to take discovery. Fed. R. Civ. P. 
26(d), 30(a)(2)(C) and 34(b). Because no discovery is permitted at this time, the Court should 
issue a protective order to prevent the noticed deposition of Mr. Bernhardt. 
3/ Plaintiffs’ attempted discovery is also improper under applicable Administrative Procedure Act 
principles. See, e.g., Defendants’ Motion for Protective Order Regarding Plaintiffs’ Notice of 
Deposition of the Secretary of Interior at 5-7 (November 10, 2003). 
2
II. DISCOVERY FROM MR. BERNHARDT IS NOT WITHIN THE SCOPE OF 
PERMISSIBLE DISCOVERY UNDER RULE 26 
Even if discovery were otherwise permissible, Plaintiffs cannot show that the discovery 
sought from Mr. Bernhardt would be within the scope of the Federal Rules. Under Rule 
26(b)(1), parties may only obtain discovery regarding matters that are “relevant to the claim or 
defense of any party . . . .” Fed. R. Civ. P. 26(b)(1). Although information need not be 
admissible at trial to be discoverable, it still must be “[r]elevant” information and must be 
“reasonably calculated to lead to the discovery of admissible evidence.” Id. 
At the meet and confer discussion initiated by Defendants’ counsel on November 5, 2003, 
Plaintiffs’ counsel refused to identify any of the subject areas that they would cover during a 
deposition of Mr. Bernhardt. They claimed the right to explore all “relevant” information. 
Plaintiffs’ refusal to describe the information sought from Mr. Bernhardt makes it difficult for 
the Court, and Defendants, to assess claims of relevance. As discussed above, however, 
Defendants are unaware of any discoverable information at this time that would be relevant and 
reasonably calculated to lead to the discovery of admissible evidence. A deposition of Mr. 
Bernhardt could thus necessarily only cover topics outside the scope of permissible discovery. 
As such, a protective order is needed to prevent the deposition. 
3
CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: November 12, 2003 
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/ John T. Stemplewicz 
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 
4
CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on November 12, 2003 I served the foregoing 
Defendants’ Motion for a Protective Order Regarding Plaintiffs’ Notice of Deposition of David 
L. Bernhardt was served by Electronic Case Filing, and on the following who are not registered 
for Electronic Case Filing in the manner indicated: 
Per the Court’s Order of April 17, 2003, 
by Facsimile 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Interior Defendants’ Motion for a Protective Order 
Regarding Plaintiffs’ Notice of Deposition of David L. Bernhardt. Upon consideration of the 
Motion, the responses thereto, and the record in this case, it is hereby 
ORDERED that Interior Defendants’ Motion for a Protective Order is GRANTED; it is 
further 
ORDERED that Plaintiffs are precluded from deposing Mr. Bernhardt at this time. 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge
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) 514-9163 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 318-2372 
Keith Harper, 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 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530