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' NOTICES OF DEPOSITION OF HORD TIPTON, 
BRIAN BURNS, PAT MOLONEY [SIC], THAO LE, AND JOHN MESSANO 
On December 30, 2004, without any prior communication to counsel for Defendants, 
Plaintiffs noticed the depositions of Hord Tipton, Chief Information Officer, Department of the 
Interior, for January 13, 2005 (Exhibit A); Brian Burns, Chief Information Officer, Bureau of 
Indian Affairs, for January 14, 2005 (Exhibit B); Pat Moloney [sic], Chief, Systems Division, 
Office of the Chief Information Officer, Department of Interior [sic], for January 18, 2005 
(Exhibit C); Thao Le, Chief Technology Officer, Office of Chief Information Officer [sic] for 
January 19, 2005 (Exhibit D); and John Messano, Director, Office of Information Operations 
[sic] for January 20, 2005 (Exhibit E). For the reasons set forth below, the Court should order 
that these depositions not be taken.1 
1/ As required by Fed. R. Civ. P. 26(c), and Local Rule 7(m), counsel for Defendants conferred 
with counsel for Plaintiffs in an attempt to resolve this dispute without Court action. Counsel for 
Defendants first sent counsel for Defendants a letter (Exhibit F), asking counsel for Plaintiffs the 
reason and basis for the first three depositions. Counsel for Plaintiffs sent counsel for 
Defendants a letter in reply (Exhibit G), and posted that reply on Plaintiffs' website. Counsel for 
Defendants then sent a letter to counsel for Plaintiffs (Exhibit H) asking the reason and basis for 
1
ARGUMENT 
Plaintiffs are not authorized to take discovery at this time.2 On September 2, 2004, the 
Court restricted all discovery by Plaintiffs except where they first demonstrate that a deposition 
or document request "involve[s] IIM trust record retention and preservation." September 2 Order 
at 8 (Dkt. No. 2662). Plaintiffs have not sought to make such a showing. 
Furthermore, the Court explained in its September 2, 2004 Order (and in a companion 
order entered the same day), that it was permitting such limited discovery "to preserve the status 
quo" pending resolution of the appeals. Id. at 2. The appeals have now been decided3 and, with 
respect to the IT security appeal which was the subject of the December 3, 2004 decision, the 
Court of Appeals has issued its mandate. Cobell v. Norton, No. 03-5262 (D.C. Cir. Jan. 3, 
2005). It has not issued its mandate with respect to its decision of December 10, 2004. The 
parameters of Plaintiffs' intended discovery are unclear. Insofar as they extend to matters subject 
to the Court of Appeals' December 10, 2004 decision, for which no mandate has issued, this 
Court's observation in denying Plaintiffs' Request for Emergency Status Conference Regarding 
the second set of depositions. Counsel for Plaintiffs replied today, stating that Mr. Messano's 
deposition is now noticed for January 24, 2005 (Exhibit I). Counsel for Defendants also 
consulted by telephone with counsel for Plaintiffs about this motion, and counsel for Plaintiffs 
stated that they would oppose this motion. 
2/Plaintiffs acknowledge this at page 12 of their recently filed Reply in Further Support of 
Motion to Amend Plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their 
Employees and Counsel Should Not Be Held in Contempt for Destroying E-Mail (Dkt. # 2808), 
where they state, "[Defendants'] sole defense to plaintiffs' litany of instances of destruction – 
which plaintiffs do not contend to be complete given the bar to plaintiffs' discovery rights in this 
litigation – consists of . . . ." (Emphasis added; footnote omitted.) 
3/Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004); Cobell v. Norton, 2004 WL 2828059 (D.C. 
Cir. Dec. 10, 2004). 
2
the Security of Electronic Trust Records (December 3, 2004) (which sought, inter alia, "a 
comprehensive discovery schedule") that "both the status of the Court's prior Orders and its 
authority to act in this case going forward are uncertain at this time," remains apt. Order of 
December 20, 2004, at 2 (Dkt. No. 2789). 
With respect to the issues of IT security, the Court of Appeals, although noting greater 
latitude than in a typical agency case, 391 F.3d at 257, nevertheless described a process, identical 
to that followed in APA cases and endorsed in its December 10, 2004 decision, which should be 
followed in reviewing claims that Interior has breached a duty to maintain secure IT records 
systems: 
The district court in Cobell V contemplated that the post-liability 
phase of the underlying litigation would, in part, "involve the 
government bringing forward its proof of IIM trust balances and 
then plaintiffs making exceptions to that proof." 91 F.Supp.2d at 
31. Given Interior's superior access to information about the state 
of its IT system security, this was a reasonable way to proceed in 
evaluating the plaintiffs' request for injunctive relief to disconnect 
IT systems. But it was error to shift the burden of persuasion to the 
Secretary to show why disconnecting most of Interior's IT systems 
was unnecessary to ensure the security of IITD, and the error was 
not harmless. 
391 F.3d at 259 (citations omitted). Before the Court can ascertain whether extra-record 
discovery is appropriate in this case, Interior must "bring forth" its proof that IITD in its systems 
is properly secured and file its administrative record, and Plaintiffs should then voice their 
exceptions. Only at that point will it be appropriate for Plaintiffs to attempt to demonstrate that 
this is one of the exceptional circumstances in which judicial review of an agency action may 
consider matters not in the administrative record. Interior is now compiling the administrative 
record to support its conclusions that relevant systems are A-130 compliant. Because Interior's 
3
conclusions constitute final agency action regarding A-130 compliance, Interior expects to soon 
provide the Court the A-130 administrative record for the Court's review. 
In all but exceptional situations, judicial review of agency action is confined to the 
administrative record. See Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 
(D.C. Cir. 1998) (citations omitted) (in most instances, the APA "limits review to the 
administrative record . . . ."); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. 
Supp. 2d 57, 65 (D.D.C. 2002) (citation omitted), aff'd, 333 F.3d 156 (D.C. Cir. 2003), cert. 
denied, 540 U.S. 1218 (2004) ("It is well-established that the scope of review under the APA is 
narrow and must ordinarily be confined to the administrative record.") As established 30 years 
ago in Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam), "the focal point for judicial review 
[of agency action] should be the administrative record already in existence, not some new record 
made initially in the reviewing court." Accord Fla. Power & Light v. Lorion, 470 U.S. 729, 743 
(1985); see also Common Sense Salmon Recovery v. Evans, 217 F. Supp. 2d 17, 20 (D.D.C. 
2002) (citations omitted) ("[P]laintiffs fail to recognize the basic rule that generally discovery is 
not permitted in Administrative Procedure Act cases because a court's review of an agency's 
decision is confined to the administrative record."); Marshall County Health Care Auth. v. 
Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) ("[C]hallengers to agency action are not . . . 
ordinarily entitled to augment the agency's record with . . . discovery . . . ."); Texas Rural Legal 
Aid, Inc. v. Legal Services Corp., 940 F.2d 685, 698 (D.C. Cir. 1991) (citations omitted) ("The 
general principle that informal agency action must be reviewed on the administrative record 
predates the APA . . . ."); Nat'l Law Ctr. on Homelessness and Poverty v. Dep't of Veteran's 
Affairs, 736 F. Supp. 1148, 1152 (D.D.C. 1990) ("discovery is not [generally] permitted prior to 
4
a court's review of the legality of agency action . . . .") 
In contrast to the process required by the Court of Appeals and by established case law, 
Plaintiffs apparently intend to engage in a roving investigation untethered to any proceeding.4 
For example, Plaintiffs claim that the noticed depositions are intended to uncover an imagined 
scheme of "systemic spoliation of electronic and hard copy trust records in breach of trust" which 
"has been concealed by the trustee-delegates and their counsel." See January 3, 2005 Letter from 
Dennis Gingold to John Siemietkowski at 1 (Exhibit G). They have also announced an intention 
to investigate this "coverup" and the "representations" made to the Court "concerning the 
preservation and protection of such records that are of grave concern to plaintiffs." Id. Thus, 
Plaintiffs seek to adopt an impermissible5 role for themselves akin to a Court Monitor, 
overseeing Interior's compliance with its statutory obligations to maintain secure records and 
investigating every action identified by Interior in its reports6 regarding the preservation and 
4/Even under the usual rules of discovery that would apply in a non-APA case, Plaintiffs would 
not be entitled to launch such an untethered "fishing expedition" through their proposed 
depositions, using broad and vague parameters, of these individuals. Alexander v. F.B.I., 186 
F.R.D. 113, 119 (D.D.C. 1998) ("[I]t is one thing for a plaintiff who may have spotted a fish to 
throw his net in that direction; it is quite another to trawl the entire lake to see if it contains any 
fish at all.") 
5/If such an "investigative, quasi-inquisitorial, quasi-prosecutorial role" is improper for a Court 
Monitor, Cobell v. Norton, 334 F.3d 1128, 1142 (D.C. Cir. 2003), then surely it is improper for 
Plaintiffs. 
6/The Court has ordered Interior to submit reports about preservation and retention of trust 
documents. See Order of Sept. 9, 2004. Interior has complied. Interior has filed four reports 
and informed the Court in detail about its actions regarding the preservation of trust records. The 
Court has ordered Interior to submit quarterly reports on the status of trust reform. Interior has 
complied. Interior has filed nineteen quarterly reports, which, among other things, have informed 
the Court about Interior's actions to secure and preserve documents. See, e.g., Department of the 
Interior, Status Report to the Court Number Nineteen, Nov. 1, 2004, 30-32; Department of the 
Interior, Status Report to the Court Number Eighteen, Aug. 2, 2004, 29-30; Department of the 
5
retention of trust documents.7 
Once Interior has presented its proof and administrative record and Plaintiffs have voiced 
their exceptions, the Court can consider any claim Plaintiffs may make regarding their 
entitlement to discovery. Until that time, good cause exists for the Court to issue a protective 
order to prevent the noticed depositions. 
For these reasons, Defendants’ Motion for a Protective Order should be granted. 
Dated: January 12, 2005 
Interior, Status Report to the Court Number Seventeen, May 3, 2004, 31-33. Plaintiffs' abusive 
discovery practice has been to take these reports that the Court has ordered Interior to file and 
then simply to lift various phrases from the reports and request all documents related to that 
phrase. See, e.g., Plaintiffs' Thirteenth Request for Production of Documents, Category No. 5 to 
27 (Exhibit J); Plaintiffs' Fourteenth Request for Production of Documents (Exhibit K) (lifting 
phrases from Defendants' October 26, 2004 ZANTAZ motion, Dkt. No. 2745). They have also 
taken the names of individuals identified by Interior in these reports and pleadings and noticed 
them up for deposition, with no explanation of what relevance such depositions may hold. 
7/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 (D.D.C. 2003), citing Young v. United States ex rel. Vuitton et Fils, 
S.A., 481 U.S. 787, 801, 814 (1987), makes clear that the Plaintiffs cannot assume this role. See 
also Mem. Op. of Sept. 2, 2004 at 4-5 (Plaintiffs prevented from taking depositions of Justice 
attorneys where purpose was to seek evidence for criminal contempt). 
CONCLUSION 
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 
Director 
/s/ Sandra P. Spooner________ 
SANDRA P. SPOONER 
6
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 
7
CERTIFICATE OF SERVICE 
I hereby certify that, on January 12, 2005 the foregoing Defendants' Motion for a 
Protective Order Regarding Plaintiffs' Notices of Deposition of Hord Tipton, Brian Burns, Pat 
Moloney [sic], Thao Le, and John Messano 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
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs 
v. 
))))))
GALE NORTON, Secretary 
Defendants. 
)))))
____________________________________) 
NOTICE OF DEPOSITION 
To: J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1100 L Street, NW, Room 10036 
Washington, DC 20005 
Mark E. Nagle 
Assistant U.S. Attorney 
Judiciary Center Building 
555 Fourth Street, NW, Room 10-403 
Washington, DC 20001 
Attorney for Defendants 
PLEASE TAKE NOTICE, that on January 13, 2005, at the offices of the Native American 
Rights Fund, 1712 N Street, NW, Washington D.C. 20036, plaintiffs in this action will take the 
deposition of Hord Tipton, Chief Information Officer, Department of Interior, 1849 C Street, NW, 
Washington, DC, 20240. 
This deposition will commence at 9:30 a.m. and will continue from day to day until 
completed. Testimony will be recorded by stenographic means. You are invited to attend and 
examine. 
Case No.1:96CV01285 OF COUNSEL: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
HENRY PAUL MONAGHAN 
435 West 116th Street 
New York, New York 10027 
December 30, 2004 
_____________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
607 14th Street, NW 
9th Floor 
Washington, DC 20005 
_______________________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, NW 
Washington, DC 20036-2976 
Attorneys for Plaintiffs 
2
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs 
v. 
))))))
GALE NORTON, Secretary 
Defendants. 
)))))
____________________________________) 
NOTICE OF DEPOSITION 
To: J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1100 L Street, NW, Room 10036 
Washington, DC 20005 
Mark E. Nagle 
Assistant U.S. Attorney 
Judiciary Center Building 
555 Fourth Street, NW, Room 10-403 
Washington, DC 20001 
Attorney for Defendants 
PLEASE TAKE NOTICE, that on January 14, 2005, at the offices of the Native American 
Rights Fund, 1712 N Street, NW, Washington D.C. 20036, plaintiffs in this action will take the 
deposition of Brian Burns, Chief Information Officer, Bureau Of Indian Affairs, Department of 
Interior, 1849 C Street, NW, Washington, DC, 20240. 
This deposition will commence at 9:30 a.m. and will continue from day to day until 
completed. Testimony will be recorded by stenographic means. You are invited to attend and 
examine. 
Case No.1:96CV01285 OF COUNSEL: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
HENRY PAUL MONAGHAN 
435 West 116th Street 
New York, New York 10027 
December 30, 2004 
_____________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
607 14th Street, NW 
9th Floor 
Washington, DC 20005 
_______________________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, NW 
Washington, DC 20036-2976 
Attorneys for Plaintiffs 
2
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
Plaintiffs 
v. 
))))))
GALE NORTON, Secretary 
Defendants. 
)))))
____________________________________) 
NOTICE OF DEPOSITION 
To: J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1100 L Street, NW, Room 10036 
Washington, DC 20005 
Mark E. Nagle 
Assistant U.S. Attorney 
Judiciary Center Building 
555 Fourth Street, NW, Room 10-403 
Washington, DC 20001 
Attorney for Defendants 
PLEASE TAKE NOTICE, that on January 18, 2005, at the offices of the Native American 
Rights Fund, 1712 N Street, NW, Washington D.C. 20036, plaintiffs in this action will take the 
deposition of Pat Moloney, Chief, Systems Division Office of the Chief Information Officer, 
Department of Interior, 1849 C Street, NW, Washington, DC, 20240. 
This deposition will commence at 9:30 a.m. and will continue from day to day until 
completed. Testimony will be recorded by stenographic means. You are invited to attend and 
examine. 
Case No.1:96CV01285 OF COUNSEL: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
HENRY PAUL MONAGHAN 
435 West 116th Street 
New York, New York 10027 
December 30, 2004 
_____________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
607 14th Street, NW 
9th Floor 
Washington, DC 20005 
_______________________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, NW 
Washington, DC 20036-2976 
Attorneys for Plaintiffs 
2
2 2 (1068 NhRF DC 
ELOUISE PEP1 0. COBELL, et :ti-, 
v. 
Plaintiffs 
I 
1 
1 
) 
NOTICE OF DEPOSITION 
To: J. Christophl ' K o h 
United State Department of Justice 
Civil Divisic 1 
1100 l, Strec , NW, Room 10036 
I 
GALE NORTOK, ecretary 
PLEASE TA 
lake the deposition c 
This deposit; 
completed. Testimo 
examine. 
Defendants. 
Washington. X 20005 
Attorney 
Judiciary Ce ter Building 
555 Fourth 5 reet, NW, Room 10-403 
Washng ton. )C 200 
Atto rnev for Iefendr 
LE 30- 'ICE, that on January 19, 2005, at the offices oftlie Native 
Amcricrm Rights FLI i. 1712 N Street, NW, Waskingion D.C. 20036. plaintiffs in ths action will 
Thao I e, Chief Technology Officer, Oftice of Chief Information Officer, 
1849 C Street, NW, Jashin; 1011, DC, 20240. 
n will c mmence at 9:30 a m . and mill continue from day to day until 
v will t 2 recorded by stenographc mcms. You are invited to attend and 
IN THE UNlTED STATES DISTRICT COURT 
FOR THE DISTRICT OF C O L L I I A 
j 
1 
1 
Case No.l:96CV01285 
EXHIBIT D 
Defendants' Motion for a Protective Order 
Regarding Plaintiffs' Notices of Deposition 
of Hord Tipton, Brian Bums, Pat Moloney 
[Sic], Thao Le, and John Messano 2 2 0068 
OF COUNSEL: 
I 
JOHh’ ECHOHAV 
Native American. ghts Fu id 
1506 Broadway 
Boulder, Coloradc 03 02 
HTTU’RY PAVL M lrAGHr .N 
435 West 1 16th St :t 
New York? Ncw Y k 1002: 
January 7.2005 
NhRF DC 
ISM. G - GOLD 
D.C. Bar No. 417748 
-J-p 
GO7 14* Street, NW 
9~ Floor 
Washington. DC 20005 
D.C. Bar No. 45 1956 
Native American Rights Fund 
1712 N Strect, NW 
Washington, DC 20036-2976 
Attorneys for Plaintiffs 2 2 Otr68 SARF DC 
Plaintiffs 
GALE NORTON, ecretary 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMl3IA 
I 
j 
) 
i 
1 
ELOUISE PEP10 COBELL, ct al., 
, 
V, 
I 
Defendants. 
, 
L 
1 
1 
1 
1 
1 
i 
NOTJCE OF wrosmox 
To: J. Christoph . Kohn 
United State Department of Justice 
Civil Divisii 1 
1100 L Strer . XW, Room 10036 
Washington bc 20005 
Mark E. Na: e 
Assistant 1;. . Attorney 
Judiciary Ce ter Building 
555 Fourth reet, NW. Room 10-403 
Washington DC 20001 
Attornev ~ O I Mendants 
PLEASE T,! CE KOTICE, diat on Jmuary 20, 2005. at thc offccs of&? Native 
Americm Rights FL d2 1712 N Street, BW, Waskington D.C. 20036. pl,?intiC€s in this action will 
take the deposition I -John Messano. Director, OfYice of Intomiation Operations, 1849 C Street, 
NW, Washington, I: 1,20240. 
This deposit in will commence at 9:30 a m . and will continue From day to day until 
completed. Testimc 13’ will b‘c recorded by stenographic means. You are invitcd to attend and 
exarmne. 
Case No.l:96CV012S5 
EXHIBIT E 
Defendants’ Motion for a Protective Order 
Regarding Plaintiffs’ Notices of Deposition of 
Hord Tipton, Brian Burns, Pat Moloney [Sic], 
Thao Le, and John Messano 2 2 0068 
OF COUNSEL: 
JOHB ECHOHAF 
Native American F :hts Fu 
1506 Broadway 
Boulder, Colorado 0302 
HEKRY PAUL M( CAGH, 
435 West 116th Str &t 
New York. New Yc i 1002’ 
January 7,2005 
NARF DC 
GO7 14“’ Street, NW 
9& Floor 
Washington, DC 20005 
A 
D.C. Bar No. 451956 
Native Ammican Rights F ~ m d 
Washington; DC 20036-2976 
17 12 N S~reet, ?PAr 
Attorneys for PlainLiffs 
3 L John J. Siemietkowski 
BY FACSIMILE 
v v amiiiisjLwii, u.b. AWWWJ 
Re: Plaintiffs' Deposition Notices of' Mr. Tipton, Mr. Bums, and Mr. Maloney. 
Moloney (sic Maloney), dated December SU, ZUU4. We are not aware ol any basis lor your 
seeking this discovery and are considering appropriate remedies, such as a motion for a 
protective order and/or a motion to quash. To ensure we fully understand your reasons for 
ooobinn thorp Aonncitinnc h x i /;*nn P hA tnmnn-nixr Taniiani d nleare let m e Lnnirr thP oeneral 
I Sincerely, 
EXHIBIT F 
Defendants' Motion for a Protective Order 
Regarding Plaintiffs' Notices of Deposition 
of Hord Tipton, Brian Bums, Pat Moloney 
[Sic], Thao Le, and John Messano 
- . - . - -. - - . - 
U.S. Department of Justice 
- - - - - 
Ben Franklin Station 
Washington, DC 20044-0875 
- '. ' . 
Room 10050 
Washington, DC 20005 
Tel.: (202) 514-3368 BY FACSIMILE 
January 3, 2005 
John J. Siemietkowski 
Civil Division 
U.S. Department of Justice 
P.O. Box 875 
Washington, D.C. 20044-0875 
Re: Deposition Notices Served on Messrs. Tipton, Burns, and Maloney. 
Dear Mr. Siemietkowski: 
This is in response to your letter to me of this date concerning notices served on the 
Department of Justice for the deposition of Messrs. Tipton, Burns, and Maloney. 
In that regard, you demand that plaintiffs explain the scope of the depositions to be taken 
and suggest that you may attempt to block their deposition and, thereby, deprive plaintiffs and this 
Court of information that is probative to these proceedings. 
First, as you know, the trustee-delegates and their counsel have been engaged in the 
systemic spoliation of electronic and hard copy trust records in breach of trust and in violation of 
law, federal rules, and Court orders. Second, the nature and scope of this spoliation and its 
impact on the Cobell class has been concealed by the trustee-delegates and their counsel. Third, 
such spoliation and its coverup is, in the opinion of plaintiffs’ counsel, continuing malfeasance. 
Fourth, such spoliation necessarily includes Individual Indian Trust (“Trust”) records, records that 
qualify both as “federal records” and Trust assets. Fifth, the deponents are believed to have 
information relevant to the trustee-delegates’ conduct vis-a-vis the preservation and protection of 
electronic records. Sixth, such information is relevant to this litigation. Seventh, the trusteedelegates 
and their counsel have made representations to the Court concerning the preservation 
and protection of such records that are of grave concern to plaintiffs. 
Therefore, plaintiffs intend to depose Messers. Tipton, Burns, and Maloney to obtain 
information on all matters relevant to this litigation in accordance with federal rules and intend to 
ask them questions that could lead to the discovery of information that has been concealed from 
plaintiffs and this Court. If you choose to obstruct plaintiffs’ efforts, we will be forced to seek 
sanctions to enforce our clients’ rights and protect them from the harm that the trustee-delegates 
and their counsel unconscionably force them to endure. 
Dennis M. Gingold 
Box No. 6 
607 14th Street, N.W. 
Washington, D.C. 20005
I trust that this is response to your inquiry and that you will produce Messers. Tipton, 
Burns, and Maloney at the time and place set forth in their notices. Have a good day. 
Very truly yours, 
/s/ Dennis Gingold 
Dennis M. Gingold 
For the Cobell plaintiffs
John J. Siemietkowski 
Trial Attorney 
Dear Mr. Harper: 
U.S. Department of Justice 
Civil Division 
Express Delivery: 
1100 L Street, N.W. 
Room 10050 
Washington, DC 20005 
Tel.: (202) 5 14-3368 
Facsimile: (202) 514-9163 
Regular Mail: 
P.O. Box 875 
Ben Franklin Station 
Washington, DC 20044-0875 
BY FACSIMILE 
Mr. Keith Harper 
Native American Rights Fund 
1712 N. St., N.W. 
Washington, DC 20036-2976 
Sincerely, 
E-mail: John.Siemietkowski@usdoj.gov 
January 7,2005 
Re: Plaintiffs' Deposition Notices of Mr. Le and Mr. Messano. 
We have received plaintiffs' deposition notices for Mr. Le and Mr. Messano, dated today. 
We are not aware of any basis for your seeking this discovery and are considering appropriate 
remedies, such as a motion for a protective order and/or a motion to quash. To ensure we fully 
understand your reasons for seeking these depositions, by 6:OO P.M. Monday, January 10, please 
let me know the general subject areas to be covered and plaintiffs' legal basis for noticing the 
depositions of these individuals on these subjects. In addition, please note that January 20, the 
date you propose for Mr. Messano's deposition, is a federal holiday for federal employees in the 
Washington, D.C. area. 
JOG J. Siemietkowski 
Trial Attorney 
Commercial Litigation Branch 
EXHIBIT H 
Defendants' Motion for a Protective Order 
Regarding Plaintiffs' Notices of Deposition 
of Hord Tipton, Brian Bums, Pat Moloney 
[Sic], Thao Le, and John Messano STRRT=JAN-07 18:55 END=JRN-Q7 18:56 KiDE = MEMORY TRQNSM I SS I ON 
PQGES DURRT I ON STQT I ON NAME/TEL NO. STN 
NO. 
FILE ~0.=640 
COMM. @NE-TOLICH/ 
RBBR NO. 
OK a 001 38220068 
- 
002f002 00:00:33 
-L)OJ/CIUIL DrursroN 
- ***** - 202 514 9163- ********* .................................... - 
FROM: Department of Justice 
Civil Division 
(702) 353-3565 FLCK No. 
Voice No. 
SENT BY: 
DATE: 
(202) 616-9468 
Kevin Kingston 
Law Clerk 
Labat-Anderson, Inc, 
January 7,2005 
TO: Keith Harper 
(202) 822-0068 FAX No, 
NUMBER OF PAGES SER'T (INCLUDING COVER PAGE): 
Sirmietkowski 01-07-05 to Harper re Deposition Noticices for Messrs. Le & Messano 
IMPORTANT: This facsimile is intended only for the use of the individual or entity to whxh it is addressed i t may 
contain informarion that is privileged: confidential, or orherwise protected from disclosure under applicable law. If 
he reader of this nansmissinn is not the inrended recipient or the employee or agent responsible for delivering the 
transmission to the intended recipient, you arc hereby notified that any dissemination, distribution, copying or use of 
this hansrmssion or it's contents is strictly prohibited. If you hove received this transmission in error, please notify us 
by telephoning and return thc original transmission to US st the address given below. John J. Siemietkowski 
Trial Attorney 
Conmercial Litigation Branch 
U.S. Department of .)uslice 
1100 L Street, NW 
Room 10050 
Wasfungton. DC 20005 
Re: Plaintiffs9 Depositions Noticc of Joe Messano 
Dear Mr. S i e m i e t k o 4 u : 
I am in receipt of your January 7, 2005 lcner informing me &at J a n u v 30,2005 is a holiday. I 
have accordingly clmnged !he date of iW. Joe Messmo's deposition to January 24. 2005. A notice of 
deposition reflecting this changes is attached. Please disregard the prior notice of deposition. 
YARF DC @ (1 0 2 
EXHIBIT I 
Defendants' Motion for a Protective Order 
Regarding Plaintiffs' Notices of Deposition 
of Hord Tipton, Brian Burns, Pat Moloney 
[Sic], Thao Le, and John Messano ELOUlSE PEPION COBELL, et al., 
Plaintiffs 
vm Case No. I : 96CVOl285 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBJA 
1 1 
j 
) 
1 1 
1 
1 
GALE NORTON, Secretary 
Defendants. 
Washington. DC 20005 
Mark E. N g l e 
U'ashington, DC 3,0001 
Attorney for Defendanrs 
NW, Washington, DC, 20240. 
NOTICE OF DEPOSITION 
To: J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1 100 L Street, hTV, Room 1003 6 
Assistant T1.S. Attorney 
Judiciary CsnLer Building 
555 Fourth Street, NW, Room 10-403 
PI-EASE TAKE YOTICE, that on Jcmuary 34: 2005. at the ol'ficcs of ihe Native 
American Righ~s Fund, 1712 N Street, NW. Wctihington D.C. 20036, plantiffs in this action %ill 
take the deposition or John Mewno, Director, Office oihfomntion Operatiom, 1849 C Slreet, 
l'liis deposition will cornmencc at 9 3 0 a.m. and \\ill continue from day to day until 
completed. Testimony vclll be recorded by stenogapluc inems. You are invited to attend and OF COrnSEL: 
JOHN ECI-TOHAWE: 
Xative American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
E N R Y PAUL MONAGI-IAK 
435 West 116th Strect 
New York, New k'orlc 10027 
D.C. Bar No. 417748 
GO7 idzh Street, NW 
gh Floor 
Waslrington, DC 20005 
D.C. Bar No. 451956 
Native American lkghts Fund 
1712N S&eet,hTV 
- 
Washington, DC 20036-2976 
2 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 
____________________________________) 
THIRTEENTH REQUEST FOR PRODUCTION OF DOCUMENTS 
PLEASE TAKE NOTICE that this request is hereby made in accordance with F.R.C.P. 26(b) 
and F.R.C.P. 34 and that the Interior defendants produce the following documents and other 
information, including all such documents and information in the custody and control of the individuals 
named below, on or before the close of business January 21, 2005 at the offices of plaintiffs’ counsel 
Dennis M. Gingold, 607 14th St., N.W., 9th Floor, Washington, D.C. 20005. 
DEFINITIONS 
A. All Documents. As used herein the terms "ALL DOCUMENTS," "DOCUMENTS," “ALL 
E-MAIL DOCUMENTS” and "DOCUMENT" include a writing or recording (regardless of medium 
and including all electronically stored DOCUMENTS and other information) as defined in Federal 
Rules of Evidence, Rule 1001 (which is defined as consisting of “letters, words, or numbers, or their 
equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic 
impulse, mechanical or electronic recording, or other form of data compilation"). 
Civil Action No. 96-01285 (RCL) 
1
is defined in Section 267 of the Internal Revenue Code, including without limitation, 
parent-subsidiary corporations and brother-sister corporations. 
with respect to which a RELATED PARTY is a trustor, fiduciary or beneficiary. 
more of the equity or voting interest in such entity. 
conjunctively and disjunctively, and each shall include the other whenever such dual construction 
serves to bring within the scope of any request or category any DOCUMENT that would otherwise 
not be brought within its scope. 
versa) and the masculine shall include the feminine and/or neuter (and conversely) whenever such 
construction serves to bring within the scope of any request or category any DOCUMENT that would 
otherwise not be brought within its scope. 
1. 
2. 
3. 
Twocorporations thatare members of the same "controlled group" as thatterm 4) 
Any trust, together with the trustees, fiduciaries and beneficiaries of such trust, 5) 
An entity with respect to which a RELATED PARTY owns or holds 50% or 6) 
G. Conjunctions. As used herein, the conjunctions "and" and "or" shall be construed both 
H. Number and Gender. As used herein, the singular form shall include the plural (and vice 
SPECIAL DEFINITIONS 
YOU or YOUR shall mean Interior defendants, and each of them, and their 
REPRESENTATIVES, including without limitation personal representatives and personal 
counsel. 
IIM TRUST – the Individual Indian Monies Trust or the Individual Indian Trust. 
IIM TRUST BENEFICIARY – An individual Indian on whose behalf, as trust beneficiary, an 
IIM TRUST account is, or at any time has been, should be, or should have been, maintained 
5
by the United States or its agents and an individual Indian who holds or has held a beneficial 
interest, divided or undivided, in TRUST LAND, including restricted land; the term “IIM 
TRUST BENEFICIARY” shall include all heirs and successors-in-interest, including 
executors and personal representatives with respect to an IIM TRUST BENEFICIARY’S 
lands or estate. 
LAND TRANSACTIONS – all requested, noticed, pending, completed, voided, invalidated, 4. 
unconsummated, withdrawn, and voluntary and involuntary land transactions, including but not 
limited to commercial, industrial, recreational, agricultural, and other types of leases; rightsof-
way; easements; other encumbrances, land sales and land exchanges; grazing and range 
permits; trespass damages assessments, and condemnation. 
DOCUMENTS AND INFORMATION TO BE PRODUCED 
CATEGORY NO. 1: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the “incident report” 
referenced by Jo Anne Martinez-Kilgore on page 3 of her July 7, 2004 report.1 
CATEGORY NO. 2: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – reports prepared 
by, or on behalf of, CARINO CONSERVATION relating to the IIM TRUST DOCUMENTS or any 
IIM TRUST BENEFICIARY DOCUMENTS. 
CATEGORY NO. 3: ALL VERSIONS OF DOCUMENTS in the custody and control of Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
1Attached as Attachment 2-A to defendants’ Notice of Filing of Report on Damaged 
Records by the Department of the Interior, filed September 21, 2004 (“Preservation Assessment 
Report to the Office of Trust records of the Bureau of Indian Affairs and to the National Archives 
and Records Administration”). 
6
to – directlyor indirectly, generallyor specifically, and implicitly or explicitly – the letter fromEthel 
Abeita to Michael Billings, dated March 23, 2004. 
CATEGORY NO. 4: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVE S that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the records section 
or any records discussion included in each quarterly status report filed with the Court. 
CATEGORY NO. 5: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the existence, and 
all assessments, of “inadequate off-site storage facilities at a number of BIA locations” referenced and 
admitted to on page 2 of the report attached to the Notice of Filing of Report on Damaged Records 
by the Department of the Interior filed with the Court by the Interior defendants on September 21, 
2004 (“Report”). 
CATEGORY NO. 6: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
or their REPRESENTATIVES and all DOCUMENTS transmitted to or received by the Interior 
defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate to – 
directly or indirectly, generally or specifically, and implicitly and explicitly – the “fast pack” of Trust 
records referenced on page 2 &7 of the Report, including without limitation all DOCUMENTS that 
reference and admit to the existence or evidence of mold in such records. 
CATEGORY NO. 7: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that embody, refer to, or relate to – directly or 
indirectly, generally or specifically, implicitly or explicitly – water damage, mouse dropping damage, 
or other damage or corruption to Trust DOCUMENTS at the time such records are identified by, or 
received from, the field or by or from any bureau, office, agency, division, or any 
REPRESENTATIVE for indexing, inventory, preservation, rehabilitation, re-creation, reconstruction, 
or for any other purpose. 
CATEGORY NO. 8: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or her REPRESENTATIVE that embody, refer to, or relate to – directly or 
indirectly, generally or specifically, and implicitly and explicitly – the selection, negotiation, 
contracting, inspection, adequacy, condition, and appropriateness of 9,000 square feet of warehouse 
space at the 4320 Yale DOCUMENT storage facility (“Yale Facility”) referenced in the Report at 2-3, 
including without limitation all photographs of the interior and exterior of the facility that reflect the 
condition of the facility as well as DOCUMENTS stored in the facility during February 2004. 
7
CATEGORYNO. 9: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, implicitly or explicitly – that assess, examine, or 
discuss whether or not, and the extent to which, the facility referred to as the “AADF Warehouse” by 
the Interior defendants “meet[s] [or fails to meet] stringent standards for the storage of such 
commodities which requires it to be free of pests, mold, and moisture and the facility is regularly 
inspected to ensure that there are no pests” referenced in the Report at 4-5. 
CATEGORY NO. 10: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly and explicitly – the inspection or 
assessment of the condition of DOCUMENTS held in the Yale Facility referenced in the Report at 5. 
CATEGORY NO. 11: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly and explicitly – the OTR request 
to NARA “to procure the services of a qualified individual to inspect the affected boxes” referenced 
in the Report at 6. 
CATEGORY NO. 12: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, implicitly or explicitly – the status of the facility 
referred to as “AIRR” by the Interior defendants as a “state-of-the-art records storage facility” 
referenced in the Report at 7. 
CATEGORY NO. 13: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – information reported 
by Ethel Abeita, OTR director, “that 350 boxes of records contained mold” referenced and admitted 
to in the Report at 7. 
CATEGORY NO. 14: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – “that the 350 figure 
was a high estimate of boxes which may have been exposed to some type of harm” referenced in the 
Report at 7. 
8
CATEGORYNO. 15: ALLVERSIONS OF DOCUMENTS in the custodyand control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – “OTR’s intention 
to deal with the 285 boxes and any others discovered during indexing at the completion of the 
Albuquerque stage of the indexing project” referenced in the Report at 7-8. 
CATEGORY NO. 16: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – 155 Navajo boxes 
that have been damaged by mold that are referenced and admitted to in the Report at 8. 
CATEGORY NO. 17: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – whether or not, and 
manner and the extent to which, the 155 Navajo boxes referenced in the Report at 8 had been damaged 
by mold prior to delivery to OTR. 
CATEGORY NO. 18: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the acquisition 
process undertaken by the Interior defendants for the procurement of the “contractor" referenced in the 
Report at 8. 
CATEGORY NO. 19: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – plans developed, 
whether or not executed or implemented, and the specific process established to retain a competent 
contractor to rehabilitate and recreate, if and when necessary, each mold-damaged Trust DOCUMENT 
referenced generally in the Report at 8. 
CATEGORY NO. 20: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the 27 Blackfeet 
boxes damaged by water referenced and admitted to in the Report at 8, including all DOCUMENTS 
evidencing the delivery of such boxes to OTR as water and mold-damaged referred to in the Report 
at 8-9. 
9
CATEGORYNO. 21: ALLVERSIONS OF DOCUMENTS in the custodyand control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the additional 103 
(285 - 155 (Navajo) + 27 (Blackfeet))water-damaged boxes referenced and admitted to in the Report 
at 7-8. 
CATEGORY NO. 22: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the 35 boxes “found 
... to have mouse droppings in them” referenced and admitted to in the Report at 9. 
CATEGORY NO. 23: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the 26 boxes 
identified in the Southwest Regional Office that were found to contain mouse droppings referenced 
and admitted to in the Report at 10. 
CATEGORY NO. 24: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the index of Trust 
records referenced generally in the Report. 
CATEGORY NO. 25: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – all evaluations and 
assessments of conditions existing in each facility that houses or stores Trust DOCUMENTS, including 
a complete list of all such site evaluations and assessments whenever prepared as well as each 
particular site-assessment and evaluation referenced on page 3 of the August 2004 Status Report by 
the Department of the Interior Office of Trust Records (filed on September 30, 2004) regarding the 
Pawnee Agency, Northern Pueblos Agency, Laguna Agency, Southern Ute Agency, Southern Plains 
Regional Office, and the Anadarko Agency. 
CATEGORY NO. 26: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the incident 
disclosed in the August 2004 Status Report at 3 “that some records were being thrown out.” 
10
CATEGORYNO. 27: ALLVERSIONS OF DOCUMENTS in the custodyand control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – policies, guidance, 
and instructions, as well as the compliance system established and operated by the Interior defendants 
related thereto, that purport to authorize the Interior defendants or their REPRESENTATIVES to 
destroy DOCUMENTS, including without limitation the instruction referenced in the August 2004 
Status Report at 3 that “BIA employees were reminded that even if a document is a copy, to ensure 
that the original exists and is properly safeguarded prior to disposing of a copy.” 
CATEGORY NO. 28: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – awards, bonuses, 
pay increases, and any merit commendation or any criticism or admonishment of James Cason, Ethel 
Abeita, or Abe Haspel relating to the performance of their duty to ensure the protection and 
preservation of Trust DOCUMENTS. 
CATEGORY NO. 29: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – Justice Department’s 
review of, and findings with respect to, the adequacy of the protection of Trust DOCUMENTS by the 
Interior defendants and their REPRESENTATIVES, including without limitation OTR. 
11
Of Counsel: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
303-447-8760 
December 20, 2004 
_______________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
202 785-4166 
Respectfully submitted, 
/s/ Dennis Gingold 
________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
P.O. Box 14464 
Washington, D.C. 20044-4464 
202 824-1448 
/s/ Keith Harper 
Attorneys for Plaintiffs 
12
CERTIFICATE OF SERVICE 
I hereby certify that a copy of the foregoing THIRTEENTH REQUEST FOR PRODUCTION OF 
DOCUMENTS was served on the Interior defendants via facsimile on this day, December 20, 2003 and 
the following individual by facsimile or regular mail. 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
406.338.7530 (fax) 
/s/ Geoffrey Rempel 
_______________________ 
Geoffrey M. Rempel 
13
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 
____________________________________) 
FOURTEENTH REQUEST FOR PRODUCTION OF DOCUMENTS 
PLEASE TAKE NOTICE that this request is hereby made in accordance with F.R.C.P. 26(b) 
and F.R.C.P. 34 and that the Interior defendants produce the following documents and other 
information, including all such documents and information in the custody and control of the individuals 
named below, on or before the close of business January 31, 2005 at the offices of plaintiffs’ counsel 
Dennis M. Gingold, 607 14th St., N.W., 9th Floor, Washington, D.C. 20005. 
DEFINITIONS 
A. All Documents. As used herein the terms "ALL DOCUMENTS," "DOCUMENTS," “ALL 
E-MAIL DOCUMENTS” and "DOCUMENT" include a writing or recording (regardless of medium 
and including all electronically stored DOCUMENTS and other information) as defined in Federal 
Rules of Evidence, Rule 1001 (which is defined as consisting of “letters, words, or numbers, or their 
equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic 
impulse, mechanical or electronic recording, or other form of data compilation"). 
Civil Action No. 96-01285 (RCL) 
1
Specific examples of the documents and other information being sought (and which are 
encompassed by such defined terms in the unlikely event they are not encompassed by the definition 
set forth in Rule 1001) include: All writings, Any printed, typewritten, or handwritten or graphic 
matter, regardless of medium on which it is produced, reproduced or stored, including without 
limitation, correspondence, letters, memoranda, e-mail, e-mail backup tapes, phone records, reports, 
charts, diagrams, blueprints, site plans, business records, personal records, maps, pamphlets, 
handwritten notes, marginalia, minutes of meetings, notes of meetings or conversations, catalogues, 
advertising pamphlets, written agreements, contracts, photographs, sound recordings, papers, books, 
FILES, computer print-outs, diaries and diary entries, calendars, tables, compilations, graphs, 
recommendations, studies, worksheets, logs, workpapers, summaries, information stored by a 
computer or on a computer disk, diskette, tape, card or other form of computer memory storage, as 
well as any electronic recording, tape recording, photograph, video, film, microfilm, microfiche, or 
similar recording of words, images, sound recordings, pictures, other data or data compilations or 
information of any kind, including any medium from which information can be obtained and translated 
into usable form, and all telegrams, transmission by any of the following: telefax, e-mail, facsimile, 
telex or cable. 
This Request specifically requires YOU to produce ALL DOCUMENTS maintained or 
presently located on your employees’ and agents’ person, at their residences, on their private 
e-mail accounts or anywhere else in their possession, custody, or control. 
When requested to produce a DOCUMENT you are required to produce all VERSIONS 
thereof.
B. Version. "VERSION" or "VERSIONS" means any of the following: 
2
Anyprior, current, or subsequent version or draft ofaDOCUMENT,including 1) 
without limitation all amendments, alterations, drafts, runs and modifications. 
Any duplicate (as that term is defined in Federal Rules of Evidence, Rule 2) 
1001(4), which defines a duplicate as “a counterpart produced by the same impression as the original, 
or from the same matrix, or by means of photography, including enlargements and miniatures, or by 
mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques 
which accurately reproduce the original.”) of a DOCUMENT falling within one or more categories 
of this Request for Production of Documents, which duplicate is, or at any time has been, different 
from the DOCUMENT of which it is a duplicate – including without limitation a duplicate with 
deleted information (e.g., edits, the date/time of creation, receipt or opening of such duplicate 
DOCUMENT), a duplicate that bears added notations, marginalia, and/or have had other 
DOCUMENTS affixed or attached thereto such as stapled or paper-clipped notes and "Post-It" type 
self-stick removable notes. All DOCUMENTS commonly known as “duplicate originals,” i.e., 
counterparts signed by different signatories, are expressly included in this definition of VERSION. 
C. Delegates, Entities and Their Agents. Whenever reference is made or information is 
sought with respect to an entity such as a tribe, corporation, partnership or governmental agency or 
organization that can act only through individual agents, reference to the acts of such entity are 
intended to include all acts taken by its agents, directors, officers, employees, members and 
shareholders who have or claim to have authority to act on behalf of such entity. 
D. Person. As used herein, the term "PERSON" includes both singular and plural, and refers 
to any natural person, tribe, firm, association, partnership, joint venture, corporation, governmental 
agency or organization, estate, trust, receiver, syndicate, or any other group or combination acting as 
3
a unit or affiliated entity. Whenever reference is made herein to any act by a PERSON, such reference 
is intended to, and does, include reference to any act or conduct performed by such PERSON'S agents, 
contractors (including without limitation ZANTAZ), partners, predecessors, successors, employees, 
and/or REPRESENTATIVES unless a contrary intention is expressed. 
E. Representative. "REPRESENTATIVE" or "REPRESENTATIVES" refers to and 
includes any PERSON (as defined herein) who acts, has at any time acted, has at any time by any 
PERSON been requested or solicited to act, or has purported to act at the request of, or for the benefit 
of, or on behalf of any PERSON, including without limitation all agents acting on behalf of their 
principals. 
F. Related Party. As used herein, the term "RELATED PARTY" means a PERSON or entity 
related to another by reason of any of the following: 
Individuals being members of the same family. The family of an individual 1) 
shall include his brothers and sisters (whether by whole or half blood), present spouse, prior spouses, 
ancestors, and lineal descendants. 
A PERSON or entity and a partnership if the PERSON or entity is a general 2) 
partner of the partnership or owns 50% or more of the capital interest, or the profits interest in such 
partnership. 
A PERSON or entity and a corporation if the PERSON: (I) owns or holds 3) 
50% or more of the value of the outstanding stock of the corporation, or (ii) controls, either directly 
or indirectly through a RELATED PARTY, 50% or more of the voting power of the corporation. 
4
is defined in Section 267 of the Internal Revenue Code, including without limitation, 
parent-subsidiary corporations and brother-sister corporations. 
with respect to which a RELATED PARTY is a trustor, fiduciary or beneficiary. 
more of the equity or voting interest in such entity. 
conjunctively and disjunctively, and each shall include the other whenever such dual construction 
serves to bring within the scope of any request or category any DOCUMENT that would otherwise 
not be brought within its scope. 
versa) and the masculine shall include the feminine and/or neuter (and conversely) whenever such 
construction serves to bring within the scope of any request or category any DOCUMENT that would 
otherwise not be brought within its scope. 
1. 
2. 
3. 
Twocorporations thatare members of the same "controlled group" as thatterm 4) 
Any trust, together with the trustees, fiduciaries and beneficiaries of such trust, 5) 
An entity with respect to which a RELATED PARTY owns or holds 50% or 6) 
G. Conjunctions. As used herein, the conjunctions "and" and "or" shall be construed both 
H. Number and Gender. As used herein, the singular form shall include the plural (and vice 
SPECIAL DEFINITIONS 
YOU or YOUR shall mean Interior defendants, and each of them, and their 
REPRESENTATIVES, including without limitation personal representatives and personal 
counsel. 
IIM TRUST – the Individual Indian Monies Trust or the Individual Indian Trust. 
IIM TRUST BENEFICIARY – An individual Indian on whose behalf, as trust beneficiary, an 
IIM TRUST account is, or at any time has been, should be, or should have been, maintained 
5
by the United States or its agents and an individual Indian who holds or has held a beneficial 
interest, divided or undivided, in TRUST LAND, including restricted land; the term “IIM 
TRUST BENEFICIARY” shall include all heirs and successors-in-interest, including 
executors and personal representatives with respect to an IIM TRUST BENEFICIARY’S 
lands or estate. 
LAND TRANSACTIONS – all requested, noticed, pending, completed, voided, invalidated, 4. 
unconsummated, withdrawn, and voluntary and involuntary land transactions, including but not 
limited to commercial, industrial, recreational, agricultural, and other types of leases; rightsof-
way; easements; other encumbrances, land sales and land exchanges; grazing and range 
permits; trespass damages assessments, and condemnation. 
DOCUMENTS AND INFORMATION TO BE PRODUCED 
CATEGORY NO. 1: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the representation 
that “e-mail messages from two BIA servers were not being routed to the ZANTAZ digital safe, and 
had not been routed to the digital safe since June 2004.”1 See Motion to Defer Zantaz Motion at 1. 
CATEGORY NO. 2: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the representation 
that “We understand that BIA retained messages routed through the two servers on backup tapes, and 
that no e-mail messages were lost.” See Motion to Defer Zantaz Motion at 1. 
CATEGORY NO. 3: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
1See Defendants' Motion to Defer Consideration of Defendants' "Zantaz Motion" as to 
the Bureau of Indian Affairs, filed December 16, 2004 (“Motion to Defer Zantaz Motion”). 
6
to – directly or indirectly, generallyor specifically, and implicitlyor explicitly– the loss, destruction, 
modification, or corruption of any e-mail message since September 25, 2002. 
CATEGORY NO. 4: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the representation 
that all BIA e-mail servers were identified and incorporated in the ZANTAZ proposal to capture and 
preserve e-mail. 
CATEGORY NO. 5: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the representation 
that all BIA e-mail was captured by ZANTAZ or its REPRESENTATIVES since June 2004. 
CATEGORY NO. 6: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the representation 
that all BIA e-mail was preserved since June 2004. 
CATEGORY NO. 7: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the nature and scope 
of ZANTAZ’s and its REPRESENTATIVE’S monitoring of e-mail volume from BIA’s e-mail servers 
since June 2004. 
CATEGORY NO. 8: ALL VERSIONS OF DOCUMENTS in the custody and control of the Interior 
defendants or their REPRESENTATIVES and all DOCUMENTS transmitted to, or received by, the 
Interior defendants or their REPRESENTATIVES that in whole or in part embody, refer to, or relate 
to – directly or indirectly, generally or specifically, and implicitly or explicitly – the security of any 
information technology system that ZANTAZ or its REPRESENTATIVES have employed to capture 
and archive the Interior’s defendants’ e-mail. 
7
Of Counsel: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
303-447-8760 
December 30, 2004 
_______________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
202 785-4166 
Respectfully submitted, 
/s/ Dennis Gingold 
________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
P.O. Box 14464 
Washington, D.C. 20044-4464 
202 824-1448 
/s/ Keith Harper 
Attorneys for Plaintiffs 
8
CERTIFICATE OF SERVICE 
I hereby certify that a copy of the foregoing FOURTEENTH REQUEST FOR PRODUCTION OF 
DOCUMENTS was served on the Interior defendants via facsimile on this day, December 30, 2004 and 
the following individual by facsimile or regular mail. 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
406.338.7530 (fax) 
/s/ Geoffrey Rempel 
_______________________ 
Geoffrey M. Rempel 
9
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 A. NORTON, Secretary of the 
Interior, et al., 
)
)
)
) 
Defendants. 
____________________________________) 
ORDER 
This matter comes before the Court on Defendants' Motion for a Protective Order 
Regarding Plaintiffs' Notices of Deposition of Hord Tipton, Brian Burns, Pat Moloney [sic], 
Thao Le, and John Messano, Dkt #_____. Upon consideration of the motion, any responses 
thereto, and the record of this case, it is hereby 
ORDERED that Defendants' Motion for a Protective Order Regarding Plaintiffs' Notices 
of Deposition of Hord Tipton, Brian Burns, Pat Moloney [sic], Thao Le, and John Messano is 
GRANTED. It is further 
ORDERED that Plaintiffs may not depose Hord Tipton, Brian Burns, Pat Maloney, Thao 
Le, and John Messano. 
SO ORDERED this _____ day of __________, 2005. 
_____________________________ 
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 Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Paul 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