1N THE UNITED STATES DISTRICT COURT" '_" I _ i:i:_ 7:17-:: FOR THE DISTRICT OF COLUMBIA f- [- -- .:, ELOUISE PEPION COBELL, e_it al., ) ) Plaintifik, ) ) v. ) Case No. 1:96CV01285 (RCL) ) (Judge I. amberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) INTERIOR DEFENDANTS' CONSOLIDATED (1) MOTION FOR EXPEDITED CONSIDERATION; (2) MOTION TO COMPEL PLAINTIFF EARL OLD PERSON TO COMPLY WITH THE COURT'S DECEMBER 23, 2002 PRODUCTION ORDER AND TO APPEAR AND TESTIFY AT DEPOSITION; AND (3) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("interior Defendants" or "Interior"), pursuant to Fed. R. Civ. P. ("Rules") 37(a) and (d), hereby move that this Court enter an order requiring Plaintiff Earl Old Person to comply with tile production order entered by this Court on December 23, 2002, and to appear for his deposition, hlterior Defendants have been forced to file this motion because Plaintiffs have moved the Court for an order (discussed at pp. 3-4, infra) relieving them of any obligation to make Earl Old Person appear for deposition, based upon their unsupported assertions that Mr. Old Person will not cooperate with discovery. Because of the urgency of obtaining such discovery from Mr. Old Person, Interior respectfully asks that the Court consider such motion on an expedited basis. The following is Interior's Memorandum of Points and Authorities in support. Conference With Opposing Counsel Counsel for Interior Defendants contacted one of Plaintiffs' counsel, Mark Brown, on January 16, 2003 to see if they would consent to the relief sought by this motion, but Plaintiffs' counsel refused. Background This motion involves two aspects of discovery directed at PlaintiffEarl Old Person - a duly noticed deposition (see Exhibit 1 hereto) which was scheduled for January 9, 2003, and the Court-ordered production (see Exhibit 2 hereto) of documents due by January 8, 2003. Deposition Noticed for January 9, 2003. On December 11,2002, Interior served the First Amended Notice of Deposition - Earl Old Person, which set Mr. Old Person's deposition for January 9, 2003. A copy is attached as Exhibit 1. Mr. Old Person failed to appear. Instead, one day before the scheduled date for the deposition, Plaintiffs filed a motion for a protective order, described below. Court-Ordered Document Production (Due January 8, 2003). On June 5, 2002, Interior Defendants serYed their Request for the Production of Documents, Dated June 5, 2002, a copy of which is attached as Exhibit 3. Plaintiffs failed to comply, and instead, on July 5, 2002, Plaintiffs filed a motion seeking a protective order staying Interior's discovery. On July 16, 2002, Interior Defendants filed a motion to compel production of the requested documents. The motions were duly briefed. On December 23, 2002, this Court entered an Order (Exhibit 2 hereto) denying Plaintiffs' motion for a protective order and granting Interior Defendants' motion to compel. The Order (at 1-2) stated as follows with regard to those motions: ORDERED that plaintiffs' motion for protective order [ 1373] be DENIED. It is further 2 ORDERED that defendants' motion to compel discovery [ 1386] be GRANTED. Accordingly, it is further ORDERED that within ten (10) days from the date of this Order, plaintiffs shall comply with Interior Defendants' Request for Production of Documents, dated June 5, 2002, by producing to Interior Defendants the documents requested therein. The due date (calculated under Rule 6(a)) for Plaintiffs to produce the documents was January 8, 2003. Mr. Old Person's Failure to Produce Documents or Appear for Deposition. Mr. Old Person neither produced documents nor appeared for his deposition. Rather, on January 8, 2003 - the date oil which the Court's order required Mr. Old Person to produce the documents, and one day before tile scheduled deposition - Plaintiffs and their attorneys filcd two papers containing four motions. 1 Plaintiffs' first filing (docket number 1718) (collectively, "Plaintiffs' Motion to Remove Earl Old Person") included (1) a motion (by Plaintiffs other than Mr. Old Person) to remove Mr. Old Person as a named Plaintiff; and (2) a motion by Plaintiffs' attorneys to withdraw as his counsel. Plaintiffs' second filing (docket number 1719) (collectively, "Plaintiffs' Motion for Protective Order") 2 included (1) a motion to stay the Court's Order of December 23, 2002 as it regards Mr. Old Person's production of documents; and (2) a motion for a protective order to prevent the deposition of Mr. Old Person. Contemporaneously herewith, Interior has Plaintiffs other than Mr. Old Person served responsive documents or written objections on January 8, 2003. 2 The full title of Plaintiffs' second filing (docket number 1719) is "Plaintiffs' Consolidated Motions to Modify or In the Alternative Stay the Production Order of December 23, 2002 As It Pertains Solely to Named Plaintiff, Earl Old Person, Motion for Protective Order to Prevent the Deposition of Mr. Old Person and Memorandum of Points and Authorities in Support Thereof." -3 - filed oppositions to each of the above filings. Interior's Opposition to the Plaintiffs' Motion to Remove Earl Old Person explains why the Court should deny that motion, or at least not rnle on it until discovery of Mr. Old Person is completed. Interior's Opposition to the Plaintiffs' Motion for Protective Order demonstrates that no protective order is justified (see below). Argument I. No Basis Exists to Excuse Mr. Old Person From His Discovery Obligations Plaintiffs' Motion for Protective Order seeks to delay or avoid Mr. Old Person's obligation to comply with the Court's document production order of December 23, 2002, and his obligation to appear for a deposition. Plaintiffs argue that Mr. Old Person did not produce documents because Plaintiffs' counsel has not been able to "contact" him, and that, if the Motion to Remove Earl Old Person is granted, discovery allegedly would not be necessary. See Plaintiffs' Motion for Protective Order at 2. Interior's Opposition to the Motion for Protective Order ("Opp. to Mo. for Prot. Order") demonstrates that Plaintiffs' Motion for Protective Order is insufficient to justify deferring or quashing discovery of Mr. Old Person. The arguments in our Opposition will not be repeated in detail here, but only summarized. First, Plaintiffs failed to meet their heavy burden of showing "good cause" (see Rule 26(c)) for a protective order. See Opp. to Mo. for Prot. Order at 3-4. The insufficiency of Plaintiffs' showing is heightened by the law in this circuit which imposes special duties on a class representative to comply with discovery. As the D.C. Circuit has stated, the "[fJailure of a representative plaintiff [in a class action] to respond to discovery or to keep class counsel informed of his whereabouts is a serious matter which ought to be discouraged by appropriate sanctions." Dellums v. Powell, 566 F.2d 231,236 (D.C. Cir. 1977). Mr. Old -4- Person's non-compliance with discovery and alleged non-contact with class counsel violates his duty. Plaintiffs offer no good excuse for this. Second, the highly unusual circumstances surrounding Mr. Old Person's sudden refusal to comply with discovery or even allegedly to have contact with class counsel raise serious, urgent questions regarding whether Mr. Old Person's non-participation is because of purely personal reasons or because of the way in which tile case is being handled or is proceeding, and whether he has knowledge of, for example, antagonistic interests among class members or class representatives? See Opp. to Mo. for Prot. Order at 6; see also Interior's Opposition to the Plaintiffs' Motion to Remove Earl Old Person at 8-9. If such antagonistic interests exist, the class representatives may no longer meet the "adequate representation" requirement of Rule 23(a)(4), and modification of the class (e._&., formation of subclasses) might be appropriate. Discovery into such class-related issues is ahvays appropriate, and, even though the class already has been certified, the Court remains obliged to ensure that the class requirements of Rule 23 remain satisfied. See Opp. to Mo. for Prot. Order at 6; see also Interior's Opposition to the Plaintiffs' Motion to Remove Earl Old Person at 5-6. Thus, the failure of Mr. Old Person to comply with discovery obligations does not justify deferring or removing his discovery obligations, but, rather, makes discovery of his knowledge all the more urgent and necessary. 3 For example, Mr. Old Person suddenly ceased his participation in the case just when the parties filed their January 6, 2003 plans for "fixing the system" and for an historical accounting, and just when Mr. Old Person was to be questioned in deposition. The coincidence of these events - together with prior media reports of Mr. Old Person's disagreement with lead named PlaintiffElouise Cobell - raise serious questions about whether Mr. Old Person is aware of, for example, disagreements within the class as to the manner in which the class representatives are approaching this case. See Opp. to Mo. for Prot. Order at 2 & 6 n.4; see also Interior's Opposition to Plaintiffs' Motion to Remove Earl Old Person at 7-8. 5 Finally, even if Mr. Old Person were removed as a class representative, discovery of his knowledge still would be appropriate under appropriate D.C. Circuit precedent. See Opp. to Mo. for Prot. Order at 7 et seq. Interior Defendants should be permitted to depose Mr. Old Person about the circumstances described above and, because he remains a named Plaintiff with substantive knowledge about the merits of the case, he is properly subject to being deposed about those matters too. 4 II. The Court Should Enter Appropriate Orders to Ensure That Mr. Old Person Promptly Produces the Required Do_cuments and Appears for His Deposition Rule 37(b)(2) provides that if a party "fails to obey an order to provide or permit discovery" the Court may "make such orders in regard to the failure as arejust. ''5 Mr. Old Person failed to obey the Court's December 23, 2002 Order which required that he "comply with Interior Defendants' Request for Production of Documents, dated June 5, 2002, by producing to Interior Defendants the documents requested therein." (Order at 1-2). Thus, Interior Defendants are entitled to relief under Rule 37(b). Interior asks that the Court enter an order specifically 4 Because the requested discovery from Mr. Old Person might not be obtained and reviewed in sufficient time to include it in any pertinent motions for summary judgment that Interior files by the January 31, 2003 due date (for summary judgrnent motions pertaining to the Phase 1.5 trial), Interior might find it necessary to supplement applicable summary judgment motions based upon information learned from discovery of Mr. Old Person. 5 Although Rule 37(b)(2) goes on to list a number of sanctions that might be included within an order, these are not the exclusive remedies, for the rule states that orders for such sanctions are "among other[]" orders that the Court may enter. At this time, Interior does not seek sanctions, but simply asks the Court to enter orders that will be sufficient to cause Mr. Old Person to comply with his discovery obligations, under the potential penalty of contempt for any further non-compliance. -6- directing Mr. Old Person to produce the documents requested by a date certain. Similarly, Rule 37(d) provides that if a party "fails... to appear" for a deposition "after being served with a proper notice," "the court.., may make such orders in regard to the f_qilure as are just" which includes but are not limited to orders for certain of the sanctions listed in Rule 37(b)(2). As shown in Exhibit 1 hereto, on December 11, 2002, Interior Defendants sen'ed proper notice of the deposition of Mr. Old Person, setting it for January 9, 2003. Mr. Old Person failed to appear. Although his counsel filed the Motion for Protective Order, that motion has no merit. See Interior's Opp. to Mo. for Prot. Order. Therefore, the Court should enter an order requiring Mr. Old Person to appeal' for his deposition on a date to be selected by Interior Defendants. II1 order to ensure that Mr. Old Person understands that he has no choice but to comply, the Court's Order should warn him that failure to comply may result in punishment for contempt of court, in order to ensure that Mr. Old Person receives due notice, interior asks that the Court direct Plaintiffs' counsel to serve a copy of the Order upon Mr. Old Person promptly, and to file a certification that they have done so. III. This Motion Should Be Considered on an Expedited Basis The facts known by Earl Old Person may be significant not only to issues going to the merits of the case (e.g., that might be used by Interior Defendants in preparation for the Phase 1.5 trial which is only months away, or in summary judgment proceedings related to Phase 1.5), but also going to fundamental class-related issues discussed above. Any information that he has on such matters may have an important impact on upcoming proceedings. For example, if he discloses significant antagonistic interests among the class members and the class representatives, that may call for an immediate creation of a subclass or other appropriate relief. Any delay in such relief may prejudice such other class members by depriving them of a voice in this case. Thus, delay also would work against the interests of justice. Therefore, Interior requests that the Court consider this matter on an expedited basis. Conclusion For the reasons stated above, h_terior Del_ndants respectfully request that the Court enter the proposed orders submitted herewith, requiring Plaintiff Earl Old Person to produce the required documents by a date certain, and to appear and testify at his deposition, under the possible penalty of conternpt of court for non-compliance. A proposed order is submitted herewith. Respectfifily submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director I ? _.\ .f. t- . ./ \r-, _F \ '_ r, p. sppo izR Deputy DirectorJ JOHN T. STEMPLEWICZ Senior Trial Attorney DAVID J. GOTTESMAN Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 -8- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPtON COBELL, et al., ) ) Plaintif[s, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE NORTON, Secretary of the Interior, et al., ) ) Defendants. ) ) ORDER REQUIRING PLAINTIFF EARL OLD PERSON TO PRODUCE DOCUMENTS AND APPEAR AND TESTIFY AT DEPOSITION This matter coming beforc thc Court on the following matters: Plaintiffs' Consolidated Motions to Modify or in the Alternative Stay the Production Order of December 23, 2002 As It Pertains Solely to Named Plaintiff Earl Old Person and for a Protective Order to Prevent the Deposition of Mr. Old Person ("Plaintiffs' Motion for Protective Order"); and Interior Defendants' Consolidated (1) Motion for Expedited Consideration; (2) Motion to Compel Plaintiff Earl Old Person to Comply with the Court's December 23, 2002 Production Order and to Appear and Testify at Deposition, and any responses thereto, it is hereby ORDERED that the Plaintiffs' Motion for Protective Order is DENIED. it is filrther ORDERED that Interior's Motion for Expedited Consideration is GRANTED. It is further ORDERED that Interior's Motion to Compel Plaintiff Earl Old Person to Comply with the Court's December 23, 2002 Production Order and to Appear and Testify at Deposition, is hereby GRANTED. It is therefore further ORDERED that Plaintiff Earl Old Person shall, within five (5) days from the date of this -1- Order, produce to the Interior Defendants all documents requested in Interior Defendants' Request for the Production of Documents, Dated June 5, 2002. It is further ORDERED that Plaintiff Earl Old Person shall appear in person and shall testify at a deposition at the offices of Interior Defendants' attorneys, or at such other place as they designate, on a date and at a time selected by the Interior Defendants' attorneys, provided, however, that the deposition date will be at least five (5) days after entry of this Order. ORDERED that Plaintiffs' counsel shall serve a copy of this Order upon Plaintiff Earl Old Person within two (2) days after entry of this Order, and that Plaintiffs' counsel shall then promptly file with this Court a certification that they have served this Order upon him, or, if they are unable to do so, explaining all pertinent details of why they were unable to do so. It is fimher THE COURT ADMONISHES PLAINTIFF EARl, OLD PERSON THAT ANY FAILURE ON HIS PART TO COMPLY WITH THIS ORDER MAY RESULT IN HIS BEING PUNISHED FOR CONTEMPT OF COURT. SO ORDERED this __ day of ,2003. ROYCE C. LAMBERTH United States District Judge -2- CC: Sandra P. Spooner John T. Stemplcwicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avcnue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 -3- CERTIFICATE OF SERVICE t declare under penalty of perjury that, on January 16, 2003 1 served the foregoing Interior Defendants' Consolidated (1) _[otion Jbr Expedited Consideration,' (2) Motion to Compel Plaintiff Ear/Old Person To Comply with the Court's December 23, 2002 Production Order and to Appear and Test(fy at Deposition,' and (3) Memorandum of Points and Authorities in &tpport by facsimile in accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pelmsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 Washington, D.C. 20004 (202) 3 t 8-2372 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pemlsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 By Hand upon: Joseph S. Kieffer, III Special Master Monitor 420 7 m Street, N.W. Apartment 705 Washington, D.C. 20004 (202) 478-1958 ' -', l' J .J j' ! .: <-:j Kevm P. Kingston : I_ THE LrNITED STATE8 DISTRICT COURT FOR THE DISTRICT OF COLUSIBL_ J I_OL![SE PEPION ('()BELL, et al., Plrthlli[fs, v. Case No. 1:96CV012S5 ) (Judge Lamberth) (J.-\LE A. NORTON, Secretary of the ]merior, et_ a[.,) ) (Special Master-Monitor Defendants. ) .Joseph S. Kieffer, III) ) :l FIRST A_IENI)ED NOTI(-E OF DEPOSITION - E:\RL OLD PERSON lc i: _\h-. I-'_enni.q fxl. Oil?:-,ld /xh'. Keilh Harper Nil-. Mark Kester P,i'ov,'n Natix c American Righls Fund p.o. Box 14,164 1712 N Street, NW Washington, D.C. 2011_44-4464 Washington, D.C. 20036-2976 }:a×: 202/318-2371 · Fax: 202."822-006S Pl..E:'xSE TAKE ¢'Ol I("F lI_;_t, pursual_t to Fcc! R. Civ. P. 30, lhe Secretary o£Ihe Inlclior and the Assistmx Secretary - l_dian A££airs shall conduct the oral deposition of Plainlif£ I-\ Iii, O1,I)PERSON, 'it the oil]ecs of Defendums' allot'heys, U.S. Department of Justice, Civil Di_ ision, 1100 L Street NW, Washington, D.C., beginning at 9:30 a.m. on January 9, 2003, and, ifnecessao', shall continue on £urther dales lo be scheduled, until completed. This First Amended Notice of Deposition requires the appearance of the above-named deponent for the entirety of' the deposition. The deposition will be recorded by sound-and-visual :_nd stenographic means. EXHIBIT # 1 This First Aunended Notice of Deposition supersedes the prior Notice of Deposition that ,,v:_s served with regard to Ibc above-named deponent. Respect£tt/ly submit{ed, ROBERT D. McCALL'[JM Assistant Attorney Ger_eral STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KO/iN Director 21,, ,: < !' ?:75 ,5 Deputy Dirccior .J i JOHN T. S-['EMPLEWICZ Senior Trial Anornev DAVID ii. GOTTESMAN Tria/Attorney Conm_crcial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station \Vashing_on, D.C. 20044-0875 Tel: (2(_2) 514-7194 D':_ed: December _, .¥!0z -2- CERTIFICATE OF SERVICE I declare under pe'nr:lty of perjury that, on December 11, 2002, I served tile foregoing /th'st Amended iVot/ce o/'D_?osftio, - Ecu'/Old Person by facsimile, in accordance with their written request of October 31, 2001 upon: KeJth I-Iaqoer, Esq. Dennis M Gingold, Esq. Native American Rights Fund _Iark Brown, Esq. 1712 N Street, NW 1275 Permsyh, anJa Avemle, NW Washington, DC 20036-2976 Ninth Floor 2o2-822-0068 Washington, DC 20004 202-318-23 72 and by U.S, Mail upon: tZlliott Levitas, Esq. ] ]t)0 Peachtree Street, Suite 2800 5 .-\II,mia, GA 30309-4530 'u_xl by U.S. ]',./ail and by f\'tcsimiIe upon: ._,l:m L. Balaran. Esq. Special Master 1717 Pcm_sytvnnia Ave., NW 12th Floor \Vasl'ungton, DC 20006 202-986-8477 Joseph S. Kieffer, iii, Esq. Special Master-Monitor 420 7th Street, NW Apl 705 \V:_shington, DC 20004 2_)2-478-1958 Sean P. Sclm'_ergel UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EI,OUISE PEPION COBELL, _ al!., ) ) Plaintiffs, ) ) v. ) Civil Action Number 96-1285 (RCL) ) GALE A. NORTON, Secretary of the ) Interior, et aJ., ) ) FILED Defendants. ) ) DEC 2 8 2002 ht_"_OY MAYER WHITTiNGTO/4. ORDER For the reasons stated in the Report m_d Recommendation of the Special Master-Monitor on "Motion for Protective Order Seeking (1) Stay of Plaintiffs' Obligation to Respond to Interior Defendants' Request for the Production of Doctmlents, dated June 5, 2002; (2) Stay of Ttu'eatened Depositions of the Five Named Plaintiffs; (3) Stay of Rule 11 Motion with Respect to Court-Ordered Attorney's Fees (served June 28, 2002)" and "Defendants' Motion to Compel Discovery and Testimony of Plaintiff Elouise Cobell at Deposition" and "Defendants' Motion for Sanctions Regarding Submission of False or Misleading Affidavits by Plaint/fik' Attorney Dennis M. Gingold," which was filed with this Court on October 22, 2002, it is hereby ORDERED that plaintiffs' motion for protective order [1373] be DENIED. It is further ORDERED that defendants' motion to compel discovery [1386] be GRANTED. Accordingly, it is further ORDERED that within ten (10) days from the date of this Order, plaintiffs shall comply with Interior Defendants' Request for Production of Documents, dated June 5, 2002, by 1 EXHIBIT # 2 producing to Interior Defendants the documents requested therein. It is fih-'ther ORDERED that defendants' motion to compel appearance and testimony of plaintiff Elouise Cobell at deposition [1424] be DENIED as moot; it is further ORDERED that defendants' motion for an order adopting the Special Master-Monitor's recommendations regarding plaintiffs' production of documents, and ordering plainti frs' immediate production of documents [1620-1] be DENIED as moot; it is further ORDERED that defendants' motion to expedite consideration of their motion for an order adopting the Special Master-Monitor's recommendation regarding plaintiffs' production of documents, and ordering plaintiftV immediate production of documents [1621-1 ] be DENIED as moot. It is further ORDERED that defendauts' motion for ,'tn order (1) adopting those portions of the Special Master-Monitor's recommendation regarding depositions of named plaintiffs, and (2) ordering named plaintiffs to appear and testify at depositions [ 1626-1] be DENIED as moot. It is further ORDERED that defendants' motion For expedited consideration of their motion for an order (1) adopting those portions of the Special Master-Monitor's recommendation regarding depositions of named plaintiffs, and (2) ordering named plaintiffs to appear and testify at depositions [1625-1] be DENIED as moot. SO ORDERED. R%i_e C. Lamberth United States District Judge 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBEI.L, G al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) INIERIOR DEFENDANTS' REQUEST FOR THE PRODUCTION ,OF DOCUSIENTS, DATED JUNE 5, 2002 To: Mr. Dennis M. Gingold Mr. Kcith Harper Mr. Mark Kester Brox;q] Native American Rights Ftmd 1275 Pennsylvania Ave. NW 1712 N. Street, NW Ninth Floor Washington, DC 20036-2976 Washington, DC 20004 ' 5 The Secretar' of tlle Interior and tile Assistant Secrcta_ h2dian Affairs ("Inter/or Defendants" or "Interior"), pursuant to Fed. R. Civ. P. 34, hereby request that Plainti frs produce tile documents called for by this request, for inspection and copying at the office of Defendants' undersi_led counsel, within 30 days from the date of service hereof. DEFINITIONS AND INSTRUCTIONS 1. The terms "Named Plaintiffs" and "you," as used herein, shall mean and refcr to each of the Plaintiffs veho were desigmated as class representatives in this lawsuit, and anyone acting on their behalf. -1- EXHIBIT # 3 2. The term "Federal Agency," as used herein shall mean any department, bureau, office, agency or other component of the Executive Branch of the federal government of the United States, and any official thereof, including but not limited to the Bureau of Indian Affairs, the Department of the Interior and the Department of the Treasmy. 3. The term "IlM Accounts," as used herein, shall have the same meaning as in the Complaint filed ill this lawsuit. 4. The term "IIM Funds," as used hercin, shall mean the trust funds that the Five N,'mled Plaintiffs contend thcy beneficially own or ,are owed, as described in the answer to Interrogatory Numbers 1 and 3 ill the Plaintiffs' January 31, 2000, "Supplemental Contention Answcrs on Behalf of Class to Defendants' Fourth Set of h_terrogatories, Requests for Admission and Requests for Production dated October 15, 1999." 5. Tile term "documents," as used herein, shall mean, refer to and include all written, recorded, graphic or data-stored matters whatsoever, which are in your possession, custody and control or that of your attorneys, accountants or agents. This term includes all such materials, however produced, reproduced, stored or transcribed, whether draft, revision or final, and also all tangibles or intangibles from which written, recorded or graphic matters may be generated, produced or transcribed. This term includes, but is not limited to: all advertisements, affidavits, agreements, announcements, appointment books and records, assignments, bank records, bills, books, books of account, brochures, bulletins, cablegrams, calendars, catalogs, certificates, charts, checks (front and back), communications, compilations, computer data or flies (whether on tape, disk or any other means of data storage) computer printouts, contracts, correspondence, deposit slips, delivery records, diaries, drafts, drawings, e-mail messages, estimates, faxes, files and file labels, financial statements or reports or analyses or compilations, forms, intraoffice or interoffice communications, instructions, invoices, itemizations, jottings, journals, ledgers, letters, licenses, lists, manuals, memoranda, messages, microfilm, microfiche, -2- minutes, notes, notations, notices, pamphlets, papers, permits, photographs or depictions, plans, pro'ors, publications, receipts, recordings (whether written, visual, sound or otherwise), records, reports, sketches, statements, studies, summaries, tapes or disc recordings, telegrams, telex messages, texts, transcripts, videotapes, visual displays, wire transfer orders or receipts, writings and work papers. This term includes the original document (or a copy thereof if the original is not available to you) and any copies which differ in any way from the original or from each other, by reason of additional writing, notations, underlining or otherwise. Electronically or machine-stored data is to be produced in a legible and readable form. 6. Whenever appropriate herein, the singular form of a word shall be interpreted as /tie plural, and the plural interpreted as the singular. 7. "And" as well as "or" shall be construed in either the disjunctive or conjunctive form as necessary to bring within the scope of the request any information which may otherwise be construed to be outside its scope. 8. The term "communication" or "communications", as used herein, shall mean and refer to and include any transmission of words or thoughts by a person or between or among two or more persons, including but not limited to spoken words, discussions, conferences, conversations, negotiations, agreements, understandings, interviews, inquiries, promises, correspondence, statements, whether oral or written, and whether transmitted in person or by electronic or other means, including but not limited to radio, telephonic, Fax, e-mail or other means. 9. For each document, or portion thereof, that you seek to withhold on the basis of privilege or work product protection, provide a written response identifying the document, and described how and why it is privileged, all in sufficient detail to allow us and the presiding judge -3- to evaluate the merits of your claim of privilege. 10. The time period covered by this request is from the beginning of the time period for which Plaintiffs seek an accounting, through the time of your production of documents. 1 l. Pursuant to Fed. R. Civ. P. 34(b), you are requested to segregate documents produced in response hereto according to the paragraph or subparagraph to which they are responsive, or to produce them as they are kept in the ordinary course of business. You are also requested to identify in writing paragraphs or subparagraphs as to which no documents are produced, 12. You are to supplement your responses as required by Fed. R. Civ. P. 26(e). -4- DOCUMENTS TO BE PRODUCED 1. Alt letters or other documents that any of the Named Plaintiffs or anyone acting on their beha)f ever sent to any Federal Agency, which contain any complaint, demand, request, inquiry, or notification regarding any ofthe following: (a) the management, administration or handling oflIM Accounts or IIM Funds; Co) accountings or any t2_pe of explanations, or thc lack thereof, regarding IIM Accounts or 1TM Funds; and (c) any other matters that are tile subject of paragraphs 3, 19 and 21 (including but not limited to all subparts thereto) of the Complaint filed in this lawsuit. 2. All letters or other documents ever sent by any Federal Agency in response to, or that refer to, any complaint, demand, request, inquiry or notification by any of the Named Plaintiffs with regard to ally of the matters described in paragraph 1, above. 3. All other documents that reflect or evidence any communications by, from, or between any of the Named Plaintiffs and any Federal Agency, regarding any of the matters described in paragraphs 1 and 2, above. 4. All other documents that were created or generated by anyone, that refer to any complaint, demand, request, inquiry or notification made by any of the Named Plaintiffs to any -5 - Federal Agency at any time before 1990, with regard to any of thc matters described in paragraphs 1 and 2, above. This includes but is not limited to any newspaper or other articles, reports, memoranda, and letters. 5. All account statements, trust statements and ally other document with a label or title that has or includes the word "statement," which any of the Named Plaintiffs ever received from any Federal Agency with regard to 17IM Accounts or IIM Funds. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director SANDR_A P. SPOO_.,R '_ Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney Commercial I.itigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 OF COUNSEL: Sabrina A. McCarthy Department of the Interior Office of the Solicitor -6- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on June 5, 2002 1 served the Foregoing interior Defendants 'Request for The Production of Documents, Dated dune 5, 2002, by facsimile ill accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Dennis M. Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor 202-822-0068 Washington, D.C. 20004 202-318-2372 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Courtesy Copy by Facsimile and U.S. Mail: Alan L. Balaran, Esq. Spccial Master 1717 Pennsylvania Ave., N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 Kevin P. Kingston V -