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’ OPPOSITION TO PLAINTIFFS’ OMNIBUS MOTION TO COMPEL: 
(1) DEPOSITION OF GALE NORTON; (2) DEPOSITION OF DAVID L. BERNHARDT; 
(3) DEPOSITION OF GABRIEL SNEEZY; (4) DEPOSITION OF LUCY QUERQUES 
DENETT; (5) DEPOSITION OF DONNA ERWIN AND RELATED REQUEST FOR 
PRODUCTION OF DOCUMENTS; (6) DEPOSITION OF ELOUISE CHICHARELLO; 
(7) DEPOSITION OF BERT T. EDWARDS; (8) DEPOSITION OF JAMES CASON AND 
RELATED REQUEST FOR PRODUCTION OF DOCUMENTS; (9) PLAINTIFFS’ 
TENTH REQUEST FOR PRODUCTION OF DOCUMENTS; (10) PLAINTIFFS’ 
ELEVENTH REQUEST FOR PRODUCTION OF DOCUMENTS; AND (11) 
PLAINTIFFS’ TWELFTH REQUEST FOR PRODUCTION OF DOCUMENTS; 
AND REQUEST FOR SANCTIONS PURSUANT TO RULE 37 
Plaintiffs’ Omnibus Motion to Compel the depositions of eight individuals and the 
production of documents responsive to five sets of requests is improper, unnecessary, and mostly 
duplicative of earlier motions to compel the same discovery. The Omnibus Motion should be 
denied, along with the accompanying Request for Sanctions. 
ARGUMENT 
I. THE OMNIBUS MOTION IS LARGELY UNNECESSARY AND DUPLICATES 
EARLIER MOTIONS 
All of the proposed depositions referenced in the Omnibus Motion, and the two sets of 
document requests that were attached to the deposition notices for Mr. Cason and Ms. Erwin, are 
already the subject of motions for protective order. The Omnibus Motion does not raise any new
arguments with respect to this discovery that were not already fully briefed in Defendants’ 
motions for protective order and replies, or Plaintiffs’ oppositions to the motions. Indeed, the 
first four pages of the Omnibus Motion are consumed with merely restating the titles of these 
earlier briefs so that Plaintiffs may then incorporate them by reference. 
Plaintiffs do not dispute that ordinarily a motion to compel discovery that is already the 
subject of protective order motions would be unnecessary and improper. See Omnibus Motion at 
5 n.2. If the Court denies the protective order motions, the discovery will proceed. If the 
protective order motions are granted, any motion to compel then becomes moot, along with the 
response to the unnecessary motion. The movant is then subject to sanctions for the costs 
incurred in responding to the unnecessary motion. See Fed. R. Civ. P. 37. Plaintiffs' only stated 
explanation for filing a motion to compel under these circumstance is that they are “convinced” 
that an order compelling the discovery is nonetheless necessary here because otherwise 
Defendants might not comply with a possible Court order denying the protective order motions. 
Omnibus Motion at 5 n.2. Plaintiffs may have convinced themselves of the need for this 
Omnibus Motion, but their baffling explanation is unpersuasive and the Omnibus Motion should 
be summarily denied to the extent that the discovery it seeks to compel is already the subject of 
prior motions for protective orders.1 
Moreover, much of the discovery that Plaintiffs seek to compel in the Omnibus Motion is 
already the subject of prior motions to compel by Plaintiffs. With the lone exception of the 
deposition noticed for Secretary Norton, Plaintiffs filed motions to compel all of the proposed 
1/ Defendants served responses but did not file motions for protective order with respect to 
Plaintiffs' Tenth, Eleventh, and Twelfth Requests for Production of documents. These are 
discussed below. 
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depositions and the document requests included with the deposition notices for Mr. Cason and 
Ms. Erwin. Admittedly these earlier motions to compel were improper in that Plaintiffs failed to 
comply with the meet and confer requirements in Federal Rule of Civil Procedure 37(a)(2)(B) 
and Local Rule 7(m), and Plaintiffs are seeking to withdraw the earlier motions. See Plaintiffs’ 
Notice of Withdrawal (filed December 16, 2003). However, as of today – and, importantly, as of 
the date the Omnibus Motion was filed – the Court has not entered an order permitting Plaintiffs 
to withdraw the earlier motions, and Defendants were forced to incur costs in responding to each 
of those motions. Because the earlier motions to compel have not yet been withdrawn, the 
Omnibus Motion is duplicative to the extent it seeks to compel the same discovery and should 
also be summarily denied for this reason. 
NO DISCOVERY IS AUTHORIZED AT THIS TIME II. 
Relying upon the Federal Rules of Civil Procedure and the Court’s October 17, 2002 
Phase 1.5 Trial Discovery Order, Defendants demonstrated in the earlier motions for protective 
order that no discovery is appropriate or permissible at this stage of the litigation. In response, 
Plaintiffs continue to rely exclusively upon the language of the Court’s September 17, 2002 
Order restoring certain discovery rights that had been previously denied to them in this case. 
They contend that the September 17, 2002 Order somehow conferred upon them “unfettered” 
discovery rights and surprisingly again argue that Defendants have not identified any Order 
which restricts their discovery now that the Phase 1.5 trial has concluded. Omnibus Motion at 6- 
7. Plaintiffs have unaccountably chosen to ignore the language in the Federal Rules and the 
October 17, 2002 Order, discussed in each of Defendants’ motions for protective order, that 
unambiguously restricts Plaintiffs’ discovery rights. 
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The September 17 Order merely restored the usual discovery rights that had been denied 
Plaintiffs by a previous order. After entry of the September 17 Order, Plaintiffs were in the same 
position as any other litigant with regard to their discovery rights. On October 17, 2002, the 
Court entered a Phase 1.5 discovery scheduling order. See Phase 1.5 Discovery Schedule Order 
(October 17, 2002). Pursuant to that Order, fact discovery closed on March 24, 2003,2 and all 
discovery terminated on April 10, 2003. Plaintiffs do not, and cannot, explain how the 
September 17 Order granted them discovery rights that exceed the limits established by the 
Court's subsequent scheduling order. There is no other order granting Plaintiffs the right to take 
discovery and Plaintiffs cite none in the Omnibus Motion. 
Plaintiffs are also bound by the Federal Rules, which forbid discovery prior to a Rule 
26(f) planning conference.3 See Fed. R. Civ. P. 26(d). The parties have not held a discovery 
planning conference on any post-Phase 1.5 proceeding. Therefore, discovery has not commenced 
for any subsequent proceedings and Plaintiffs are precluded from requesting documents and 
noticing depositions without leave of Court. Id.; Fed. R. Civ. P. 30(a)(2)(C).4 
2/ The close of fact discovery was subsequently extended by the Special Master-Monitor until 
March 28, 2003. 
3/ One exception to this prohibition is that Rule 27(b) permits a district court to allow, upon 
motion that sets forth certain prescribed information, the taking of depositions of witnesses to 
perpetuate testimony “for use in the event of further proceedings in the district court,” pending 
appeal of a judgment. Fed. R. Civ. P. 27(b). Plaintiffs have not filed any such motion to take the 
depositions noticed here and therefore have obviously not met the requirements of Rule 27. 
4/ To the extent Plaintiffs are seeking discovery for the purpose of investigating potential 
criminal contempt allegations, see, e.g., Omnibus Motion at 1, 6-9, 11, this Court’s decision in 
Landmark Legal Foundation v. EPA, 272 F. Supp. 2d 70, 76-77 (D.D.C. 2003), makes clear that 
the Plaintiffs cannot assume a prosecutorial role. See also Young v. United States ex rel. Vuitton 
et Fils, S.A., 481 U.S. 787, 814 (1987) (reversible error to appoint the attorney for an interested 
private beneficiary as prosecutor of contempt allegations). 
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PLAINTIFFS FAIL TO IDENTIFY ANY RELEVANT DISCOVERY THEY SEEK III. 
Plaintiffs’ Omnibus Motion also reveals a fundamental misunderstanding about the type 
of information that is discoverable in this case. Plaintiffs claim that they need the depositions 
and requested documents because they are entitled to all “information relevant to the 
management and administration of our own trust assets.” Omnibus Motion at 9; see also id. at 4 
n.1 (Plaintiffs seek “information regarding the management and administration of our trust 
assets”); id. at 5 (arguing that under “the Law of Trusts,” Plaintiffs are entitled to “access to all 
information relevant to the administration and management of the Individual Indian Trust”); id. 
at 22 (asserting that as trustee, "the United States has an obligation to produce material relevant 
to the trust upon the beneficiaries’ request.”); id. at 25 (asserting that the trustee-delegate has a 
“Duty to Furnish Information”). Even if applicable restrictions on discovery in Administrative 
Procedure Act ("APA") cases were disregarded,5 Plaintiffs’ attorneys are not entitled to use the 
Federal Rules of Civil Procedure to discover all information that might otherwise be obtainable 
by an IIM trust beneficiary. They represent the certified class of IIM beneficiaries only with 
respect to the issues and claims in this lawsuit. Simply alleging that a beneficiary has a right to 
certain information about the IIM trust is not enough to make that information relevant to this 
lawsuit, and thus discoverable under the Federal Rules. If beneficiaries believe that they have a 
right under trust law to certain information, they should ask the appropriate Interior official for 
5/ Plaintiffs acknowledge in the Omnibus Motion that discovery is impermissible in APA cases, 
but argue that such a restriction should not apply here because this “litigation is not a run-of-themill 
administrative law case.” Omnibus Motion at 22. Defendants are unaware of any 
uniqueness exception in the APA that would permit otherwise unauthorized discovery in any 
APA case that a plaintiff designates as special. In short, the restrictions on discovery in all APA 
cases apply with equal force to this APA case, notwithstanding its supposedly unconventional 
status. 
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that information in the ordinary course of business. The Plaintiffs in this class action, however, 
are not entitled to use the formal discovery mechanisms in the Federal Rules to gather 
information that beneficiaries would merely like to obtain. The requested information must be 
relevant to an issue in this litigation.6 
As Defendants have discussed repeatedly, there are no current proceedings that require 
discovery. However, even if this changes, Plaintiffs would only be entitled to the discovery of 
information related to the claims at issue in such a proceeding. They are not entitled to discover 
any information they seek merely because it has some relation to the IIM trust. 
In short, because there is no current proceeding requiring discovery, and no current claim 
being litigated to which any discovery could possibly be relevant, Plaintiffs’ discovery at this 
time is improper. The Omnibus Motion should be denied. 
6/ Plaintiffs are surely aware of the relevancy requirement because they quote the appropriate 
language from Rule 26(b) in their Omnibus Motion. Omnibus Motion at 11. They are also 
surely aware of the issues in this case because they were framed in the Complaint filed by 
Plaintiffs. It is therefore puzzling that at this late date Plaintiffs are apparently still unaware that 
information relevant to the individual Indian trust is not coextensive with information relevant to 
the issues in this case. 
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IV. PLAINTIFFS’ ARGUMENTS CONCERNING DOCUMENT DISCOVERY ARE 
DEFICIENT, IMMATERIAL, UNSUPPORTED, PREMATURE AND MOOT 
A. Plaintiffs' Motion To Compel Needlessly Complicates The Dispute By 
Ignoring Procedural Prerequisites 
As part of their Omnibus Motion, Plaintiffs seek an order compelling full production of 
all documents they request in five separate document requests, but the motion is improper on its 
face. First, Federal Rule of Civil Procedure 37(a)(2)(B) requires that "[t]he motion must include 
a certification that the movant has in good faith conferred or attempted to confer with the person 
or party failing to make the discovery in an effort to secure the information or material without 
court action." Fed. R. Civ. P. 37(a)(2)(B) (emphasis added). Contrary to both the spirit and 
letter of this rule, Plaintiffs made no effort to narrow the discovery disputes. Had Plaintiffs made 
a good faith effort to confer, they would have learned, for example, that some of the concerns 
expressed in their motion are entirely unfounded.7 
The motion is also improper because Plaintiffs failed to comply with local rules that 
require a motion to compel to set forth each request at issue and recite the response being 
challenged. LCvR 26.2(d), 30.4. Plaintiffs, however, have ignored this requirement. The result 
is a generalized attack on the format of Defendants' general objections that wholly ignores the 
substance of the specific responses Defendants have provided to the requests. 
7/ For example, Plaintiffs complain about Defendants' objection that the requests are not proper 
discovery for cases arising under the Administrative Procedure Act. Although Defendants do not 
agree that the breadth of discovery afforded to Plaintiffs in this case is appropriate for a case 
premised upon APA jurisdiction, Defendants do not intend to withhold any otherwise 
discoverable documents on this basis alone. 
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Defendants' Motion To Compel Is Irreparably Deficient B. 
1. Plaintiffs Offer No Justification Or Explanation For The Discovery 
Sought 
The defects in Plaintiffs' motion to compel document production become evident upon 
review of the document requests and Defendants' considered responses. First, Plaintiffs' motion 
makes no effort to demonstrate the propriety or validity of any document request other than a few 
generic assertions that Plaintiffs are "entitled" to discovery. See Omnibus Motion at 11. Their 
argument erroneously presumes that this case is now in an open discovery period, 
notwithstanding that the last order entered by the Court on the matter closed all discovery more 
than six months ago.8 Remarkably absent from Plaintiffs' motion is any effort to demonstrate 
that their document requests are reasonable in scope and seek information relevant to some claim 
or defense in the case. 
Although Federal Rule 26 affords broad discovery, it does not confer any automatic 
entitlement to unlimited or boundless discovery. Discovery requests must not only be 
propounded within the time frame established by rule and Court order, but the scope of discovery 
also must not extend beyond "matter, not privileged, that is relevant to the claim or defense." 
Fed. R. Civ. P. 26(b)(1). Plaintiffs have not established any basis on which the requested 
discovery can be justified. They make the naked assertion that "Plaintiffs have important 
interests at stake . . . and the information plaintiffs seek is necessary for plaintiffs to protect those 
interests." Omnibus Motion at 11. Nowhere do Plaintiffs identify (1) what "interests" they are 
referring to; (2) how such "interests" relate to a claim or defense in the case; or (3) how any of 
8/ See Section II, supra. (addressing this fundamental difference of opinion between the parties). 
-8-
the "information" they seek is at all related to such "interests." These omissions are sufficient 
reason to sustain all of Defendants' relevancy objections. 
2. Defendants' Common Objections Have General Application For A 
Reason 
Plaintiffs focus on Defendants' "General Objections," a group of objections that are 
common to most, if not all, of the requests in each set. Plaintiffs, however, do little more than 
question the form in which the general objections are set forth. Plaintiffs wrongly contend that 
stating common objections once with "the incorporation of every general objection into each 
particular response" somehow renders them invalid. Omnibus Motion at 11-12. Plaintiffs 
proffer no support for their position.9 Instead, they simply presume that, because a common 
objection exists as to each and every document request, the objection has no validity. No rule 
requires that a party must repeatedly and separately state -- over and over -- the same objection to 
multiple requests. When an objection has equal applicability to numerous discovery requests, 
stating the objection once and making it generally applicable to those requests saves resources 
and time. In the instant case, for example, Defendants object to each document request because 
no discovery period is open at this time. That objection is common to all requests. It serves no 
purpose to require that the objection be repeated for each request to which it applies. 
Rule 34(b), which governs responses to requests for production, requires merely that the 
"response shall state, with respect to each item or category, that inspection and related activities 
9/ The cases on which Plaintiffs principally rely, such as Athridge v. Aetna Cas. & Sur. Co., 184 
F.R.D. 181 (D.D.C. 1998) and Pulsecard, Inc. v. Discover Card Svcs., 168 F.R.D. 295 (D. Kan. 
1996), see Omnibus Motion at 14, are inapposite here. Those cases deal with naked, unexplained 
objections, not the sort of substantive assertions Defendants have made here. Even Pulsecard, 
for example, sustains a privilege objection for documents that were added (presumably after the 
initial response) to an "amended privilege log." 168 F.R.D. at 307. 
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will be permitted as requested, unless the request is objected to, in which event the reasons for 
the objection shall be stated." Fed. R. Civ. P. 34(b). Defendants completely discharged this 
obligation under Rule 34(b) for each document request by fully stating the objections and the 
reasons therefor. 
Defendants' objections are carefully and completely set forth. They are not mere 
"boilerplate," but each asserted objection sets forth the reasons for each objection. If an objection 
and the reasons for it are the same from one repetitive request to the next, the objection has 
"general" application and need only be stated once. Such a careful and detailed approach to 
stating common objections complies fully with Rule 34's requirements. Moreover, where a 
particular objection has a specific basis unique to one request, Defendants have made a good 
faith effort to put Plaintiffs on notice of that additional basis in the response to the particular 
request. 
C. Many Of Plaintiffs’ Arguments Are Immaterial Because Plaintiffs Challenge 
Only Defendants’ “General Objections” And Not Those Stated In The 
Specific Responses 
Plaintiffs' motion to compel omits any consideration of the specific objections Defendants 
have asserted and treats Defendants' document responses as if they contained nothing but 
“General Objections.” Where the motion to compel is silent on objections set forth in any of 
Defendants' document responses, those objections should be taken as conceded. The motion to 
compel -- as to all such requests -- may be readily denied on the basis of all the conceded specific 
objections. 
For example, Plaintiffs contend that Defendants’ “General Objection” that Plaintiffs' 
requests are unreasonably cumulative and duplicative is "meaningless and obfuscatory" and urge 
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that the objection be overruled. Omnibus Motion at 23. Plaintiffs fail to disclose, however, that 
more specifics of this objection are expressly asserted in response to the individual requests. For 
example, in response to Request Category No. 1 of the Tenth Request, Defendants assert that 
the request is unreasonably cumulative and duplicative to the extent it seeks 
documents previously requested by Plaintiffs. See, e.g., Plaintiffs' Eighth Request 
for Production of Documents, at 9-29 (Dec. 16, 2002). (Category Nos. 13-213). 
Response to Tenth Request at 6. Thus, Defendants have not only asserted the objection and 
explained it but have also specifically identified the previous requests that are duplicated by the 
new request. 
Another example is Defendants' objection as asserted in the Responses to the Eleventh 
and Twelfth Requests. In responding to the first category of the Eleventh Request, Defendants 
assert the following specific objection: 
(i) this request is unreasonably cumulative and duplicative to the extent it seeks 
documents previously requested by Plaintiffs, see, e.g., Plaintiffs' Tenth Request 
for Production of Documents, at 6 (Oct. 21, 2003) (Category No. 1) (requesting all 
documents "which in whole or in part embody, refer or relate to – directly or 
indirectly and generally or specifically – the management and administration of 
the IIM TRUST"); Plaintiffs' Eighth Request for Production of Documents, at 9- 
17 (Dec. 16, 2002) (Category Nos. 13-15, 17, 22, 66, 72, 73, 91). 
Response to Eleventh Request at 6-7. Such detailed articulation of the "duplicate" request 
objection is more than sufficient to satisfy Rule 34, and Defendants asserted this specific 
objection wherever appropriate in their specific responses. Plaintiffs challenge none of these 
specific objections. 
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D. Plaintiffs' Protestations About Defendants’ “General Objections” Are 
Unsupported 
Plaintiffs' argument that "General Objections" are "ineffective" and thus not sustainable is 
simply wrong. They misapply the authorities cited in their motion. Contrary to their arguments, 
a "General Objection" is neither improper nor automatically invalid, nor does the assertion of 
common objections under such a heading condemn the responding party to waiver of those 
objections, as Plaintiffs contend. See Omnibus Motion at 14-16. 
The sufficiency of Defendants' objections must be judged in light of the circumstances 
under which the requests were made. E.g., Boca Investerings P'ship v. United States, No. 97- 
602, 1998 WL 426567 (D.D.C. Jan. 20, 1998) (approving, in the case of privileged documents, a 
"two stage" discovery response, comprising an initial "blanket" objection followed later by a 
detailed privilege log as document production proceeds); High Tech Communications, Inc. v. 
Panasonic Co., No. 94-1477, 1995 WL 133344, at *2 (E.D. La. Mar. 24, 1995) (sustaining a 
general objection on privilege grounds where "necessitated by the nature of . . . [the discovering 
party's] document requests"). Indeed, even in cases involving access to potentially privileged 
records, courts have acknowledged that "the circumstances surrounding the assertion of a general 
objection" need to be considered. Id. At "times the blanket objection will be made for slothful 
reasons," but in other cases "there may exist an arguable reason" that justifies the general 
objection, even in the case of privilege claims. Id. (quoting Eureka Fin. Corp. v. Hartford 
Accident & Indem.,136 F.R.D. 179, 184 (E.D. Cal.1991)). 
It is accepted practice in this district for a party to assert its objections using a “two-step” 
approach. This approach is described by the court in Boca Investerings, at *1, as follows: 
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In the first stage, plaintiffs set forth their general objections and, subject to them, 
indicated what they would produce as to each individual request. In the second 
stage, they actually produced the documents they said they would produce in the 
first stage, renewed their general objections, and produced a privilege log setting 
forth their attorney-client privilege claim to justify their not producing eleven 
documents. 
The court rejected the opposing party’s claim that the privilege objections were waived because 
they had not been asserted as part of the original discovery response. The court observed that 
“no federal rule of civil procedure . . . condemns this two-stage procedure, [or] requires that, if it 
is used, the privilege log must be produced in the first stage rather than the second, or specifies 
that production at the second rather than the first stage constitutes a waiver of the privilege 
claimed in the log.” Id. at *2. 
In this instance, Plaintiffs propounded document requests, which under Rule 34 must be 
responded to within 30 days, assuming that a response is required when discovery is not open. 
Defendants expressly warn Plaintiffs in each written discovery response that the “Response 
reflects the Defendants' good faith diligent efforts to consider and investigate the subject matter 
covered by the Requests and to respond to each of the Requests within the allotted time. The 
statements made herein are based upon the information known as of the date of this response and 
are subject to correction, modification and supplementation if and when additional relevant 
information becomes known to Defendants.” Response to Erwin Request at 1 (emphasis added); 
see also Response to Cason Request at 1; Response to Tenth Request at 1; Response to Eleventh 
Request at 1; Response to Twelfth Request at 1. Plaintiffs are thus on notice that Defendants 
reserve the right to amplify and refine their discovery responses as the search for responsive 
documents proceeds. 
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Due to the breadth of Plaintiffs' documents requests and the various locations throughout 
the country where responsive documents may be present, it is not possible for Defendants to 
identify and review all responsive documents by the time a written response to a request is due. 
Consequently, Defendants have followed a “two-step” approach to their discovery responses. 
In the instant situation, this approach is both practical and reasonable. Because no 
discovery is even appropriate at this time, Defendants have no obligation to collect and review all 
potentially responsive documents, but the responses provided to Plaintiffs afford them adequate 
notice of problems with their requests. Plaintiffs suffer no prejudice by this approach, as no 
discovery period is now open and Plaintiffs face no impending discovery or trial deadline. 
Although Plaintiffs cite a number of cases that criticize reliance upon generic, 
“boilerplate” objections, the “General Objections” here are not mere boilerplate. The cases 
Plaintiffs cite criticize the naked assertion of objections without explanation. There is a 
substantive difference between a perfunctory “blanket” objection and the detailed “common” 
objections Defendants asserted here. 
Moreover, Plaintiffs attempt a sleight of hand by relying on cases that address the 
sufficiency of arguments on a motion to compel and improperly grafting those briefing 
requirements onto what must be contained in a simple discovery response. For example, 
Plaintiffs parenthetically quote from Chubb Integrated Sys. Ltd. v. Nat'l Bank of Washington, 
103 F.R.D. 52, 59-60 (D.D.C. 1984), see Omnibus Motion at 16, to suggest that Defendants' 
discovery responses required "'submitting affidavits or offering evidence'" of an undue burden. 
But a discovery response need only state the objection and explain the reason(s) for it. Fed. R. 
Civ. P. 34(b). The Chubb case addresses the support required in responding to a motion to 
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compel or in moving for a protective order – it does not describe the sufficiency of a discovery 
response, as Plaintiffs improperly contend. 
Moreover, Defendants do not rely only upon their asserted objections but have appended 
to this submission (as Exhibits A, B and C) Declarations by James Cason, which support the 
burdensomeness objections asserted in the Tenth, Eleventh and Twelfth Requests. The 
declarations demonstrate that full compliance with Plaintiffs' Tenth, Eleventh and Twelfth 
Requests as drafted would require, respectively, at least 192,000, 2,800 and 11,000 employeehours 
to complete.10 These estimates substantiate the burdensomeness objections. 
Plaintiffs' Challenge To Privilege Claims Is Both Defective And Premature E. 
Plaintiffs make a two-fold argument against Defendants' assertion that some documents 
otherwise responsive to the discovery requests may be privileged on one or more grounds. 
Plaintiffs assert that (i) any objection has been waived because no privilege log was produced 
with the written responses and (ii) Defendants’ role as "trustees" for the class members (the 
"beneficiaries"), eliminates any basis for an assertion of privilege, because Defendants act for the 
benefit of the beneficiaries. The first contention has already been refuted above. With discovery 
closed, Plaintiffs are not entitled to any production, much less a privilege log. Even if discovery 
were open, Defendants, as already demonstrated, may assert their objections in two stages by 
providing a privilege log once that review is complete. Defendants have also already refuted 
Plaintiffs’ second argument that Defendants’ “trustee” status negates all claims of privilege in 
10/ The enormous number of hours estimated for the Tenth Request is likely due to the fact that 
Plaintiffs' demand seeks, inter alia, every email in the possession of Secretary Norton that 
touches on any aspect of IIM trust matters. A search for documents responsive to this request 
alone would necessitate retrieving and reading virtually every email sent to or from the Secretary 
in her official capacity. 
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responding to Plaintiffs’ previous motion to compel. Defendants’ Opposition To Plaintiffs' 
Consolidated Motion To Compel Production Of Documents And Request For Sanctions 
Pursuant To Rule 37, at 14-17 (October 30, 2003). Rather than restate the fallacy of Plaintiffs’ 
position, Defendants incorporate their previous response herein by reference.11 
All Of Defendants' Other Challenged Objections Should Be Sustained F. 
The Objection To Duplicate Requests Is Meritorious 1. 
The defects of Plaintiffs’ contentions concerning this objection have already been 
addressed above. See Section IV. C., supra. 
2. Objections To Searching Electronic Records On Back Up Tapes 
Should Be Sustained 
In response to prior discovery requests, the Department of the Interior has invested 
substantially in the creation of an e-mail capture and back-up system that will allow archived emails 
to be searched. Known informally by the name of the contractor providing this service to 
the Department, ZANTAZ, the project has processed many e-mail back-up tapes that were not 
searchable into an electronic archive that is searchable. See generally ZANTAZ Status Report 
for DOI (January 15, 2004) attached to United States' Status Report To The Special Master Of 
January 20, 2004. The project, however, is not complete, and there remain some back-up tapes 
that have not yet been processed. To this extent, then, Defendants object to having to search 
through old-format archive tapes that may still exist.12 
11/ Defendants acknowledge the Court's previous rulings in this area, but the Court has not held 
that no privileges apply. The privilege objections are also asserted here to preserve the issue for 
appeal. 
12/ This objection is distinct from any burdensomeness objection that arises because of the 
breadth or nonspecific nature of Plaintiffs’ demands for searches of the ZANTAZ archives. 
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3. Objections Based Upon Compliance With Court Orders Should Be 
Sustained 
Plaintiffs complain that Defendants' discovery responses include an objection to requests 
that might require Defendants to violate a Court order. In its Memorandum and Order of 
December 22, 2002, this Court expressly prohibited Defendants from having any contact with 
members of the Cobell class. To the extent a discovery request would obligate Defendants to 
contact a class member in violation of the Order, Defendants object to the request. To date, 
however, Defendants are not aware that the limitation imposed by the Order has prevented the 
production of any otherwise discoverable document.13 Nevertheless, Defendants must not be 
forced by mere reason of a discovery request to face the intractable dilemma of being sanctioned 
for a discovery violation or for violating a standing order of the Court. Defendants’ objection 
should be sustained. 
4. Plaintiffs Concede That Defendants' Objection To Producing 
Documents Beyond Their Possession And Control Is Valid 
Several of Plaintiffs' recent requests demand production of documents in the possession 
of certain individuals within the Department of the Interior. Defendants have asserted an 
objection to make clear that they do not have any duty to obtain copies of documents that are not 
in the possession or control of Defendants. While Plaintiffs challenge the objection, their 
argument seems to concede its very viability. Citing In re Bankers Trust Co., 61 F.3d 465 (6th 
Cir. 1995), Plaintiffs assert that documents are deemed to be within a responding party's control 
13/ As with the privilege objections, this is a prophylactic objection designed to place Plaintiffs on 
notice of all potential problems that may arise as Defendants search for otherwise responsive 
records. If such a situation arises, Defendants will put Plaintiffs on notice of the specifics of the 
objection. 
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if the party has a legal right to obtain them. Omnibus Motion at 24. Thus, it seems that Plaintiffs 
agree that where no legal right exists to obtain documents, Defendants have no duty to produce 
them. This is precisely the essence of the challenged objection. The Court, therefore, may treat 
the issue as resolved. 
5. Defendants Are Entitled To Object To Expensive Productions Unless 
Plaintiffs Defray The Costs 
Finally, Plaintiffs take issue with Defendants' notice to them that some requested 
materials may be so laborious or time-consuming to produce that Defendants may ask Plaintiffs 
to underwrite those costs or help defray them. This objection is designed to place Plaintiffs on 
notice that some materials sought by Plaintiffs may simply be prohibitively expensive to produce, 
in which event the parties will need to agree about how to cover the expense. Plaintiffs complain 
that such an objection must be preserved by a Protective Order, but no such requirement exists.14 
To the contrary, a responding party is always entitled to object when the cost of complying with a 
document request would impose an undue burden. 
14/ Also, contrary to Plaintiffs' argument, Omnibus Motion at 24, a responding party does not 
need to file a motion for a protective order if it objects to a production request under Rule 34. A 
responding party need only object in the response. The requesting party may then abandon the 
request, seek to resolve the dispute through conference or, failing that, move to compel. 
Moreover, Rule 26(b) expressly authorizes a Court, by order, to limit discovery in a number of 
ways, including when the discovery is "unreasonably cumulative or duplicative," or "the burden 
or expense of the proposed discovery outweighs its likely benefit," taking into account such 
things as the needs of the case, the parties' resources, and "the importance of the proposed 
discovery." Fed. R. Civ. P. 26(b)(2). 
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V. PLAINTIFFS HAVE FAILED TO ESTABLISH ANY BASIS FOR THEIR 
REQUEST FOR RULE 37 SANCTIONS 
Plaintiffs request attorney fees and costs pursuant to Rule 37(a)(4)(A) for what they claim 
is the "unjustified refusal of Defendants comply [sic] with Plaintiffs’ Discovery Requests.” 
Omnibus Motion at 27. However, as set forth fully above, and in the various applicable motions 
for protective orders, Defendants have filed their motions and have not produced the requested 
documents because discovery is closed, and Plaintiffs' discovery is unauthorized under Rule 26. 
In addition, Defendants have served specific responses and objections to each of Plaintiffs' 
various document requests. Defendants are thus substantially justified in opposing Plaintiffs' 
current round of discovery. An award of sanctions is unwarranted. 
-19-
CONCLUSION 
For these reasons, Plaintiffs’ Omnibus Motion to Compel and Request for Sanctions 
should be denied. 
Respectfully submitted, Dated: January 23, 2004 
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 
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 
-20-
CERTIFICATE OF SERVICE 
I hereby certify that, on January 23, 2004 the foregoing Defendants’ Opposition to 
Plaintiffs’ Omnibus Motion to Compel: (1) Deposition of Gale Norton; (2) Deposition of David 
L. Bernhardt; (3) Deposition of Gabriel Sneezy; (4) Deposition of Lucy Querques Denett; (5) 
Deposition of Donna Erwin and Related Request for Production of Documents; (6) Deposition of 
Elouise Chicharello; (7) Deposition of Bert T. Edwards; (8) Deposition of James Cason and 
Related Request for Production of Documents; (9) Plaintiffs’ Tenth Request for Production of 
Documents; (10) Plaintiffs’ Eleventh Request for Production of Documents; and (11) Plaintiffs’ 
Twelfth Request for Production of Documents and Request for Sanctions Pursuant to Rule 37 
was served by Electronic Case Filing, and on the following who is not registered for Electronic 
Case Filing, by facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Plaintiffs’ Omnibus Motion to Compel: 
(1) Deposition of Gale Norton; (2) Deposition of David L. Bernhardt; (3) Deposition of Gabriel 
Sneezy; (4) Deposition of Lucy Querques Denett; (5) Deposition of Donna Erwin and Related 
Request for Production of Documents; (6) Deposition of Elouise Chicharello; (7) Deposition of 
Bert T. Edwards; (8) Deposition of James Cason and Related Request for Production of 
Documents; (9) Plaintiffs’ Tenth Request for Production of Documents; (10) Plaintiffs’ Eleventh 
Request for Production of Documents; and (11) Plaintiffs’ Twelfth Request for Production of 
Documents and Request for Sanctions Pursuant to Rule 37 (Dkt. # 2439). Upon consideration 
of the Omnibus Motion, the responses thereto, and the record in this case, it is hereby 
ORDERED that Plaintiffs’ Omnibus Motion to Compel should be and hereby is DENIED 
in its entirety. 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge 
Case No. 1:96CV01285 
(Judge Lamberth)
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530