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 JAMES CASON 
AND REQUEST FOR PRODUCTION OF DOCUMENTS 
On October 29, 2003, without any prior communication to counsel for Defendants, 
Plaintiffs noticed the deposition of James Cason, the Associate Deputy Secretary of the 
Department of the Interior, for December 4, 2003 (“Notice of Deposition”) (attached as Exhibit 
1). The Notice of Deposition also included two requests for production of documents. Notice of 
Deposition at 2. Plaintiffs are not permitted to depose Mr. Cason, or formally request production 
of documents, because they are not entitled to any discovery at this time. Even if discovery were 
appropriate now, Plaintiffs cannot show the requisite extraordinary circumstances that would 
justify the deposition of a high government official. Moreover, the lack of any proceedings 
makes it impossible to determine whether the requested discovery would be within the scope of 
permissible discovery under Rule 26(b). Accordingly, pursuant to Rule 26(c), Defendants move 
for a protective order preventing the noticed deposition of Mr. Cason and relieving Defendants of 
the responsibility of responding to the document requests.1 
1/ As required by Rule 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
ARGUMENT 
NO DISCOVERY IS AUTHORIZED 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 the Phase 1.5 trial. 
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 the Interior to perform specific tasks.2 Under 
the schedules established by the Court's September 25, 2003 orders, a Phase 2 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 2 trial. 
Finally, there are no other proceedings before the Court requiring discovery. Even if the 
noticed deposition of Mr. Cason, and the accompanying document requests, were purportedly 
action. Plaintiffs expressed an intent to oppose the relief requested here. 
2/ Defendants have filed a notice of appeal of the September 25, 2003 structural injunction, and 
the Court of Appeals issued an administrative stay of that injunction on November 12, 2003. 
Plaintiffs, therefore, have no basis for seeking to inquire about what Defendants are presently 
doing to comply with the structural injunction. 
3/ Defendants note and reassert their continuing objection to discovery on the ground that such 
discovery is improper in an APA case. For that purpose, we incorporate by reference the 
arguments set forth in Defendants’ Motion for Protective Order Regarding Plaintiffs’ Notice of 
Deposition of the Secretary of Interior at pages 5-7 (November 10, 2003). 
2
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 requested 
discovery. 
II. MR. CASON’S DEPOSITION SHOULD NOT BE PERMITTED BECAUSE 
HIGH-RANKING GOVERNMENT OFFICIALS CANNOT BE DEPOSED 
ABSENT EXTRAORDINARY CIRCUMSTANCES 
Even if discovery were appropriate at this time, Plaintiffs would not be permitted to take 
the deposition of Mr. Cason, the Associate Deputy Secretary of the Department of the Interior. 
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, 313 U.S. 409, 422 (1941)); see also In re United States, 197 
F.3d 310, 313-14 (8th Cir. 1999) (same); In re United States, 985 F.2d 510, 512 (11th Cir. 1993) 
(per curiam) (“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) (“exceptional circumstances must 
exist before the involuntary depositions of high agency officials are permitted”). 
The primary basis for this rule was explained in Capitol Vending Co. v. Baker, 36 F.R.D. 
45, 46 (D.D.C. 1964): 
If the head of a government agency were subject to having his deposition taken 
concerning any litigation affecting his agency or any litigation between private parties 
which may indirectly involve some activity of the agency, we would find that the heads of 
government departments and members of the President’s Cabinet would be spending their 
time giving depositions and would have no opportunity to perform their functions. 
3
See also Community Fed. Sav. & Loan v. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621 
(D.D.C. 1983) (“Considering the volume of litigation to which the government is a party, a 
failure to place reasonable limits upon private litigants’ access to responsible governmental 
officials as sources of routine pre-trial discovery would result in a severe disruption of the 
government’s primary function.”). 
The Court has applied this rule previously in this case. In a March 25, 1999 Order, the 
Court ruled that before Plaintiffs could take the depositions of high government officials they 
“shall be required to provide evidence demonstrating and proving: (A) that Plaintiffs have an 
extraordinary need for these particular depositions; and (B) that the precise information they seek 
from these individuals is available from no other source.” March 25, 1999 Order Granting 
Consolidated Motion for Protective Order at 1-2. 
Plaintiffs cannot make the requisite showing of extraordinary need here. At the meet and 
confer discussion initiated by Defendants’ counsel on November 5, 2003, Plaintiffs’ counsel 
refused to identify the precise subject areas that they would cover during a deposition of Mr. 
Cason. They claimed the right to explore all “relevant” information. 
If the document requests in the Notice of Deposition are any indication, it appears that at 
least one of the topics that Plaintiffs wish to explore in a deposition of Mr. Cason involves his 
testimony before Congress on October 29, 2003. See Request No. 1, Notice of Deposition at 2. 
Plaintiffs’ desire to appoint themselves as roving investigators does not qualify for the 
exceptional circumstances permitting a deposition of the Associate Deputy Secretary.4 As the 
4/ As Associate Deputy Secretary, Mr. Cason shares authority and responsibility at the Secretarial 
level for the oversight and management of the Department’s Indian trust and associated reform 
efforts. 
4
Eighth Circuit has explained, “[a]llegations that a high government official acted improperly are 
insufficient to justify the subpoena of that official unless the party seeking discovery provides 
compelling evidence of improper behavior and can show that he is entitled to relief as a result.” 
In re United States, 197 F.3d at 314. “[A]t a minimum,” Plaintiffs must demonstrate that the 
witness sought to be deposed would “possess information essential to [Plaintiffs’] case which is 
not obtainable from another source.” Id.; see also Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C. 
1998). Because there are no current proceedings for which discovery is needed, Plaintiffs cannot 
demonstrate that any information is relevant to their case, let alone “essential.” Moreover, 
Plaintiffs cannot show that any information they would seek to elicit from Mr. Cason could not 
be obtained through other means. See Simplex, 766 F.2d at 587. 
III. THE REQUESTED DISCOVERY CANNOT BE REASONABLY CALCULATED 
TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE 
Because the scope of any future proceedings in this litigation remains undefined, it is 
impossible to determine, and Plaintiffs cannot show, that the requested discovery 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. 
The absence of any proceeding scheduled at this time containing triable issues of fact 
renders the determination of what would be reasonably calculated to lead to the discovery of 
admissible evidence premature, if not impossible. Under the circumstances, Plaintiffs’ attempts 
5
to take discovery at this time amount to a fishing expedition with no discernible bounds. A 
roving investigation untethered to any proceeding is not permissible discovery under Rule 26.5 
CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: November 26, 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 
5/ To the extent Plaintiffs have propounded this discovery for the purpose of investigating 
potential criminal contempt allegations, this Court’s decision in Landmark Legal Foundation v. 
EPA, 272 F. Supp. 2d 70, 76-77 (D.D.C. 2003), makes clear that the Plaintiffs cannot assume a 
prosecutorial role. See also Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 
814 (1987) (reversible error to appoint the attorney for an interested private beneficiary as 
prosecutor of contempt allegations). 
6
CERTIFICATE OF SERVICE 
I hereby certify that, on November 26, 2003 the foregoing Defendants’ Motion for a 
Protective Order Regarding Plaintiffs’ Notice of Deposition of James Cason and Request for 
Production of Documents 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 
7
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 Defendants’ Motion for a Protective Order 
Regarding Plaintiffs’ Notice of Deposition of James Cason And Request For Production of 
Documents (Dkt. # ______). 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 the Plaintiffs are precluded from deposing James Cason at this time; 
ORDERED that Defendants need not respond to the document production requests 
included with the notice of deposition of Mr. Cason; 
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. 
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 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530