IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ REPLY IN SUPPORT OF 
MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFFS’ 
REQUEST FOR PRODUCTION OF MMS AUDIT DOCUMENTS AND 
PLAINTIFFS' NOTICES OF DEPOSITION OF DEBORAH GIBBS TSCHUDY 
AND LONNIE J. KIMBALL WITH REQUEST FOR PRODUCTION OF DOCUMENTS 
AND 
OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL 
AND REQUEST FOR SANCTIONS PURSUANT TO RULE 37 
On October 29, 2003, Defendants moved for a protective order regarding Plaintiffs' 
document requests and deposition notices inquiring into the September 26, 2003, ex parte site 
visit and related Site Visit Report of the Special Master to the Dallas, Texas Office of the 
Minerals Revenue Management Division of the Department of the Interior's Minerals 
Management Service ("Report"). For the reasons stated in Defendants' opening memorandum, as 
well as below, Defendants respectfully request that the Court enter a protective order and deny 
Plaintiffs' Motion to Compel and Request for Sanctions.
Background 
On October 1, 2003, Plaintiffs sent a letter to Defendants' counsel containing requests for 
production of Minerals Management Service ("MMS") Audit files ("Request for MMS Audit 
Documents"); on October 17, 2003, Plaintiffs served a Notice of Deposition of Deborah Gibbs 
Tschudy and Request for Production of Documents ("Gibbs Tschudy Deposition Notice"); and 
on October 20, 2003, Plaintiffs served a Notice of Deposition of Lonnie J. Kimball and Request 
for Production of Documents ("Kimball Deposition Notice") (collectively referred to as 
"Discovery Regarding the Special Master's Site Visit"). On October 29, 2003, Defendants filed a 
Motion for a Protective Order regarding the foregoing requests ("Motion for Protective Order").1 
On November 12, 2003, Plaintiffs filed their opposition to Defendants' Motion for Protective 
Order in a consolidated filing that included a Motion to Compel and Request for Sanctions 
Pursuant to Rule 37 ("Opposition"). This filing constitutes Defendants' Reply in Support of their 
Motion for a Protective Order as well as Defendants' Opposition to Plaintiffs' Motion to Compel 
and Request for Sanctions Pursuant to Rule 37.2 
I. Defendants' Motion For Protective Order Should Be Granted And Plaintiffs' 
Motion To Compel Should Be Denied. 
A. No Discovery Is Authorized At This Time 
In the Motion for Protective Order, Defendants demonstrate that a protective order from 
Plaintiffs' Discovery Regarding the Special Master's Site Visit is warranted because under the 
1/ See Defendants' Motion for Protective Order Regarding Plaintiffs' Request For Production of 
MMS Audit Documents And Plaintiffs' Notices of Deposition of Deborah Gibbs Tschudy and 
Lonnie J. Kimball With Requests For Production Of Documents (filed Oct. 29, 2003). 
2/ Defendants have also filed responses to each of Plaintiffs' document requests pursuant to Rule 
34(b) (attached as Exhibits 1, 2, and 3). 
2
Federal Rules of Civil Procedure all discovery is currently unauthorized in this case. See Motion 
for a Protective Order at 2-3. In their Opposition, Plaintiffs claim that discovery is authorized 
and incorporate by reference their previous arguments that this Court’s September 17, 2002 
Order granted them “full discovery” rights. See Opposition at 6. Plaintiffs contend that the 
September 17, 2002 Order granted them unending discovery rights. Opposition at 6 n.7 
(incorporating prior arguments to that effect). There is no basis for their contention. 
The September 17 Order merely restored the usual discovery rights that had been denied 
Plaintiffs by a previous order. After entry of the September 17 Order, Plaintiffs were in the same 
position as any other litigant with regard to their discovery rights. On October 17, 2002, the 
Court signed a Phase 1.5 discovery scheduling order. See Phase 1.5 Discovery Schedule Order 
(October 17, 2002) (attached as Exhibit 4). Pursuant to that Order, fact discovery closed on 
March 24, 2003,3 and all discovery terminated on April 10, 2003. Plaintiffs do not, and cannot, 
explain how the September 17 Order granted them discovery rights that exceed the limits 
established by the Court's scheduling order. There is no other order granting Plaintiffs the right 
to take discovery and Plaintiffs cite none in their Opposition. 
Plaintiffs are also bound by the Federal Rules, which forbid discovery prior to a Rule 
26(f) planning conference, as described in the Motion for Protective Order.4 See Fed. R. Civ. P. 
3/ The close of fact discovery was subsequently extended by the Special Master-Monitor until 
March 28, 2003. 
4/ One exception to this prohibition is that Rule 27(b) permits a district court to allow, upon 
motion that sets forth certain prescribed information, the taking of depositions of witnesses to 
perpetuate testimony “for use in the event of further proceedings in the district court,” pending 
appeal of a judgment. Fed. R. Civ. P. 27(b). Plaintiffs have not filed any such motion to take 
Ms. Gibbs Tschudy's or Mr. Kimball's depositions and therefore, have obviously not met the 
requirements of Rule 27. 
3
26(d). The parties have not held a discovery planning conference on any subsequent proceeding 
in this case. Therefore, discovery has not commenced on any subsequent proceedings and 
Plaintiffs are precluded from requesting documents and noticing depositions without leave of 
Court. Id.; Fed. R. Civ. P. 30(a)(2)(C). 
To the extent Plaintiffs contend in their Opposition that they have the right to discovery 
on "institutional reform ordered by this Court on September 25, 2003," see Opposition at 6 n.7, 
they fail to cite any language in the Court's September 25, 2003 Orders or structural injunction 
granting Plaintiffs discovery rights. Moreover, the Court's structural injunction was 
administratively stayed by the Court of Appeals on November 12, 2003, so it cannot provide a 
basis for the untimely new requests served by Plaintiffs. 
B. Neither The Special Master's Ex Parte Site Visit Nor His Report, Which The 
Court Has Not Adopted, Provide Any Basis For Discovery 
The Special Master's September 26, 2003, ex parte site visit to the Dallas MMS Office 
and related Report provide no independent basis for the Plaintiffs to take discovery. As set forth 
in Defendants' opening brief, Plaintiffs rely on the Special Master's Report as a predicate for their 
discovery into the Special Master's site visit and Report, even though the Court has not adopted 
the Report and Interior Defendants filed a response and objection to that Report on October 16, 
2003. See Motion For Protective Order at 4. Plaintiffs' Opposition only confirms their 
misplaced reliance on the Report as the basis for their discovery: 
Plaintiffs['] discrete discovery requests are designed to obtain 
evidence that more fully exposes the nature and scope of Norton's 
continuing malfeasance, including without limitation evidence 
related to the Master's preliminary findings that violations of law 
and court orders as well as breaches of trust continue to plague 
4
Norton's management and administration of the Individual Indian 
Trust. 
Opposition at 4. Plaintiffs incorrectly characterize the Special Master's Report as "incontestible," 
and then apparently conclude, without citing any authority, that the Report somehow grants them 
discovery rights. Id. at 3. To the contrary, a master's report consists of recommendations that 
can always be contested by the parties pursuant to Rule 53 and the Court may choose to adopt or 
reject any findings in the report or recommit the matter to the master.5 Fed R. Civ. P. 53(e)(2). 
The Court has neither adopted or rejected any findings in the Report. Regardless, discovery 
rights do not spontaneously generate because the Special Master has filed a Report and 
Defendants filed a response. Discovery is closed, and the Court has not ordered additional 
discovery at this time. 
Plaintiffs argue further that discovery is warranted because Interior Defendants are 
purportedly "prevent[ing] the Master from uncovering additional evidence[.]" Opposition at 2. 
To the contrary, Defendants are not preventing the Special Master from conducting site visits; 
indeed, they expressly informed him that they do not object to his conducting site visits, provided 
that they are conducted inter partes and with notification to counsel. See Letter from Sandra P. 
Spooner, Deputy Director, Civil Division, Department of Justice, to Alan L. Balaran, Special 
Master dated September 30, 2003 (attached as Exhibit 5). Therefore, Plaintiffs have no basis to 
5/ Interior Defendants have objected to the Report in its entirety pursuant to Rule 53(e)(2). See 
Interior Defendants' Response and Objection To The Site Visit Report of the Special Master to 
the Dallas, Texas Office of the Minerals Revenue Management Division of the Department of the 
Interior's Minerals Management Service (filed October 16, 2003). Plaintiffs filed no Rule 53 
response. 
5
assert that Defendants are preventing the Special Master from "uncovering additional evidence," 
and their erroneous assertion cannot serve as a pretext for discovery.6 
Plaintiffs do not dispute that the Special Master conducted his site visit ex parte or that 
Interior Defendants' request that he terminate his site visit was accompanied by a phone message 
from Defendants' counsel requesting that he conduct his site visits inter partes. Motion for 
Protective Order at 3. Instead, Plaintiffs' Opposition simply assumes that the Special Master had 
the authority to conduct his site visit ex parte but fails to cite any order of the Court or provision 
in Rule 53 permitting the Special Master to conduct ex parte site visits or extra-record 
proceedings that exclude Defendants' counsel. In any event, Plaintiffs fail to explain how the 
Special Master's investigatory conduct entitles them to discovery. 
The Nature And Scope of Plaintiffs' Document Requests Are Objectionable C. 
Even if discovery were authorized, the nature and scope of Plaintiffs' discovery requests 
are objectionable under Rule 26. See Motion for Protective Order at 7-10. Defendants attached 
the Gibbs Tschudy Declaration to the Motion for Protective Order to demonstrate that certain of 
Plaintiffs' document requests would impose undue burden and expense on Defendants. See 
Motion for a Protective Order at Exhibit 4. In their Opposition, however, Plaintiffs fail to even 
address any of the facts in the declaration, but instead, attack the credibility of Ms. Gibbs 
Tschudy, adding their usual invectives and culminating in a request for her confinement.7 See 
Opposition at 6-8 (accusing Ms. Gibbs Tschudy of an "attempt to materially mislead this Court 
6/ Even assuming arguendo the Special Master had been improperly denied access to conduct site 
visits, that fact does not call for or give license to Plaintiffs to conduct discovery. 
7/ Part II below addresses the lack of any legal justification for Plaintiffs' request that Ms. Gibbs 
Tschudy and others be confined. 
6
and the plaintiffs"). Similarly, Plaintiffs fail to address how their requests for the personnel files 
of Ms. Gibbs Tschudy and Mr. Kimball, as well as all individuals under their supervision, seek 
relevant information that is reasonably calculated to lead to the discovery of admissible evidence 
and have not been propounded to simply subject individuals to undue "oppression," "annoyance" 
and "embarrassment."8 See Motion for Protective Order at 7-8. 
In addition, Plaintiffs are requesting categories of documents that, if they exist, are 
protected by the attorney client privilege or the work product doctrine, notwithstanding the 
Court's opinions on the fiduciary exception. See Motion for Protective Order at 9-10. Plaintiffs 
fail to rebut Defendants' argument on this issue. Opposition at 6-7, 9-10. Defendants seek 
protection from certain of Plaintiffs' document requests attached to the Gibbs Tschudy and 
Kimball deposition notices because, on their face, those requests seek documents relating solely 
to the Special Master's conduct as a judicial official. Such documents, if they exist, are not the 
type of documents that would relate to the administration of the IIM trust, but would be purely 
litigation related. Plaintiffs fail to articulate any basis for the Court to conclude otherwise. 
Instead, Plaintiffs demand a privilege log, see Opposition at 9, but their request for a privilege 
log is premature. In the event the Court orders discovery to go forward, Defendants will provide 
a privilege log for documents withheld on the basis of privilege. 
8/ Plaintiffs also completely ignore the numerous objections raised by Defendants in their 
responses to Plaintiffs' Request for MMS Audit Documents. Moreover, with regard to document 
requests attached to the Kimball and Gibbs Tschudy Deposition Notices, Plaintiffs filed their 
Motion to Compel well before Defendants were even required to respond, and did respond, to 
them; thus, they apparently made the decision to move to compel production of documents 
before considering those responses and objections. 
7
In sum, good cause exists for a protective order preventing Plaintiffs' Discovery 
Regarding the Special Master's Site Visit: (1) discovery is not authorized at this time; (2) the 
Special Master's Report provides no independent basis for discovery; and (3) the unreasonable 
and improper nature of certain of the requests warrant protection. Therefore, Defendants' Motion 
for a Protective Order should be granted and Plaintiffs' Motion to Compel should be denied. 
II. Plaintiffs Have Failed to Establish Any Basis For Their Request For Monetary 
Sanctions And Confinement 
A. Defendants' Objections to Discovery At This Time Are Substantially Justified 
Plaintiffs request attorney fees and costs pursuant to Rule 37(a)(4)(A) for what they claim 
is the "unjustified refusal of Norton and Martin to produce the aforementioned documents and 
privilege logs[.]" Opposition at 11. However, as set forth fully in the Motion for Protective 
Order and in section I, above, Defendants filed their motion and have not produced the requested 
documents because discovery is closed, and Plaintiffs' discovery is unauthorized under Rule 26. 
In addition, Defendants have served specific responses and objections to each of Plaintiffs' 
various document requests. (Exhibits 1, 2, and 3). 
Similarly, Plaintiffs' contention that Defendants were required to serve a privilege log at 
this time is without merit. Opposition at 9. Plaintiffs apparently assume, incorrectly, that 
discovery is open, that Defendants are otherwise required to produce documents, and that 
Defendants are withholding particular documents based on an assertion of privilege. Id. To the 
contrary, discovery is closed, and, for that reason, Defendants have no obligation to produce 
documents in response to Plaintiffs' improper discovery demands. Defendants have not yet 
8
asserted privilege with respect to any particular document. Accordingly, a privilege log would be 
premature. In the event that discovery is opened and Defendants assert privilege with respect to 
particular documents, a privilege log will be provided. 
B. Defendants Have Not Violated The August 12, 1999 Order 
Plaintiffs request that the Court enter an order "confining Gale Norton, Sandra Spooner 
and Deborah Gibbs Tschudy until full compliance is achieved with this Court's August 12, 1999 
Consent Order." Opposition at 11. However, Plaintiffs fail to provide any basis for the Court to 
conclude that Defendants are not complying with the August 12, 1999 Order. Defendants have 
specifically informed the Special Master that they do not object to site visits authorized by and 
performed in accordance with the August 12, 1999 Order. See Letter from Sandra P. Spooner, 
Deputy Director, Civil Division, Department of Justice, to Alan L. Balaran, Special Master, dated 
Sept. 30, 2003 (attached as Exhibit 5). Defendants have objected to the Special Master 
conducting his site visits ex parte because such authority was not conferred on him by either the 
August 12, 1999 Order or Rule 53. Motion for Protective Order at 3-6. Indeed, the Special 
Master agreed to notify Defendants' counsel prior to such site visits so that they could accompany 
him. See Letter from Sandra P. Spooner, Deputy Director, Department of Justice, to Alan L. 
Balaran, Special Master dated Oct. 28, 2002 (attached as Exhibit 6). In their Opposition, 
Plaintiffs fail to point to any language in either the August 12, 1999 Order or in Rule 53 that 
grants the Special Master the power to conduct site visits ex parte. 
C. Plaintiffs Have Failed To Establish Any Basis For Confinement 
Even if it were assumed for the sake of argument that Defendants had violated the August 
12, 1999 Order, Rule 37 provides no basis to confine any individuals for a violation of that order. 
9
Rule 37(a)(4)(A) only provides for monetary sanctions. Rule 37(b)(1), which permits sanction 
only when a deponent fails to answer a question after being directed to do so by the Court, does 
not apply here. Rule 37(b)(2) also does not apply because the August 12, 1999 Order is plainly 
not "an order to provide or permit discovery" within the meaning of Rule 37(b)(2), but, instead, 
is an order referring authority to the Special Master pursuant to Rule 53. Plaintiffs fail to cite any 
basis other than Rule 37 for requesting the confinement of individuals to achieve "full 
compliance" with the Court's August 12, 1999 Order. 
To the extent Plaintiffs' request for confinement can be interpreted as a request that the 
Court confine individuals as a sanction for contempt based on purported violations of an order, 
Plaintiffs have not, and cannot, establish a legal basis for either civil or criminal contempt. First, 
Plaintiffs have not alleged a violation of a clear and unambiguous order. "'[C]ivil contempt will 
lie only if the putative contemnor has violated an order that is clear and unambiguous,'" 
Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (quoting 
Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991)). Plaintiffs have failed to identify 
any order that clearly and unambiguously requires Defendants to permit the Special Master to 
conduct ex parte site visits, and there is none. Similarly, Plaintiffs also fail to identify any clear 
and unambiguous discovery order requiring Defendants to submit to discovery at this time, and 
there is none. Even if the Court had issued such orders, the requirements for civil contempt 
would still not be met because the Court never issued a conditional order finding individuals in 
contempt, threatening to impose sanctions, and defining purgation conditions. National Labor 
Relations Board v. Blevins Popcorn Co., 659 F.2d 1173, 1184-85 (D.C. Cir. 1981) (citing Oil, 
Chem. & Atomic Workers Int'l Union v. NLRB, 547 F.2d 565, 581 (D.C. Cir. 1977)); see also 
10
SEC v. Bilzerian, 112 F. Supp. 2d 12, 16 (D.D.C. 2000) (penalty should be imposed only after 
recalcitrant party has been given an opportunity to purge itself of contempt by complying with 
prescribed purgation conditions). For the same reasons that allegations of civil contempt fail, 
there is also no legal basis to impose confinement or any other sanction as punishment under the 
more stringent standards for proving criminal contempt. United States v. Roach, 108 F. 3d 
1477, 1481 (D.C. Cir. 1997), vacated on other grounds, 136 F.3d 794 (D.C. Cir. 1998) (the court 
must find, beyond a reasonable doubt, that the person willfully violated a "clear and reasonably 
specific" order of the court) (citing United States v. NYNEX Corp., 8 F.3d 52, 54 (D.C. Cir. 
1993), and United States v. Turner, 812 F.2d 1552, 1563 (11th Cir. 1987)). 
CONCLUSION 
For these reasons, Defendants’ Motion for a Protective Order should be granted, and 
Plaintiffs' Motion to Compel and Request for Sanctions should be denied. 
Respectfully submitted, Dated: November 24, 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 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
11
/s/ Timothy E. Curley 
___________________________________ 
TIMOTHY E. CURLEY 
D.C. Bar No. 470450 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
12
CERTIFICATE OF SERVICE 
I hereby certify that, on November 24, 2003 the foregoing Defendants’ Reply in Support 
of Motion for Protective Order Regarding Plaintiffs’ Request for Production of MMS Audit 
Documents and Plaintiffs' Notices of Deposition of Deborah Gibbs Tschudy and Lonnie J. 
Kimball with Request for Production of Documents And Opposition to Plaintiffs' Motion to 
Compel And Request for Sanctions Pursuant to Rule 37 was served by Electronic Case Filing, 
and on the following who is not registered for Electronic Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston 
13