ELOUISE PEPION COBELL, et al., Appellees, V. NO. 03-5063 [consolidated with No. 03-5084 and NO. 03-50971 GALE A. NORTON, as Secretary of the Interior, et al, ) 1 1 1 ) ) ) ) Appellants APPELLANTS' MOTION TO EXPEDIT CYYY P n A f i r AAYV ~ ~ A U U L . A ~ ~ L Y A !L 1% nsolidated appeals. a ) 1 1 nn-rww-rxrm ~ x m nnnT nimr-mxm UMY Appeal No. 02-5374 (argument set for April 24, 2003). u c n n Pursuant to Rule 27, Fed. R. App. P., appellants in 1. This case arises out of claims for an accounting of The question presented in Appeal No. 03-5063 is whether the litigation are discoverable under a "fiduciary exception" to the privilege if they relate to "t:rust administration. The district unless it can demonstrate that the communication was made "solely to protect [the trustee] personally or the government from civil 212 F.X.D. 24, 30 (E.E.C. 2002). or crirr,inai liabilitii [ . j !! The court subsequently extended the same reasoning to invocations of the work product privilege. See Order of February 5, 2003, - F . R . D . - , 2003 'WL 255970, at *12 ( D . D . C . 2003) ("As in the case of attorney-client privilege, this Court views the work product doctrine as applicable only where the material is developed exclusively for purposes other than the benefit of trust beneficiaries, i.e., solely to aid in 1itigation.Il). The question presented in Appeal No. 03-5097 is whether this ruling was error. 2. The district court has made clear that its rulings were intended to provide a framewor:k for analyzing all future invocations of the attorney-client and work product privileges. See 212 F . R . D . at 26; Order of February 5, 2003, I - F . R . D . - 2003 WL 255970, at *13. Indeed, the court has stated that attempts to bring further claims of privilege before the court that are inconsistent with its rulings may be subject to I Order of March 5 ; 2 0 0 3 , - F . R . D . - 2003 WL 1 ~ 5 ~ 7 ~ a t + - - . - - . I - sanctions; - - - - - - - - - - 733992, at *12 (D.D.C. 2003); Order of February 5, 2003, - , L i ' i - r . h . T . - - r , r - b,;; Because of the importance of the privilege issues and because procee~~ngs in the district co.urt are oiigoilig, we -2 - 1 V respectfully request that the ICourt set an expedited briefing and argument schedule. APRIL 2003 Respectfully submitted. /&\c 73 6 I a J k MARK B. STERN ( 2 0 2 ) 514-5089 ALISA B. KLEIN ( 2 0 2 ) 514-1597 Attornevs, ADpellate Staff Civil Division DeDartment of Justice 601 D St., N.W. Room 9108 Washinqton, D.C. 20530-0001 - 3 - iZO2 j 6 6 2 - 6 7 7 5 Keith M. Harper Native American Rights Fund 1 7 1 2 N Street, N.W. Washington, D.C. 20036-2976 (202) 785-4166 Herbert Lawrence Fenster McKenna Long & Aldrich 1900 K Street, N.W. Washington, D.C. 20006 ( 2 0 2 ) 4 9 6 - 7 5 0 0 2nd te t h e following counsel by federal express, overnight mail: Elliott H. Levitas Law Office of Elliott H. Levitas i i c i i F E E C I J L L ~ . ~ S'LX-EE: Suite 2800 Atlanta, GA 30309-4530 ( 4 0 4 ) 8 1 5 - 6 4 5 0 CERTIFICATE OF SERVICE i hereby certify that on this i6th day of A p r i l , 2003, I caused copies of the foregoing motion to be sent to the Court and to the following counsel by hand delivery: The Honorable Royce C. Lamberth United States District Court United States Courthouse Third and Constitution Jive=; N.W. Washington, D.C. 20001 Dennis Marc Gingold Law Offizz of Dennis Narc Ging~ld 1 2 7 5 Pennsylvania Ave., N.W. 9th Floor Washington, D.C. 20004 Alisa B. Klein .- 212 F.R.D. 24 . - H (Cite as: 212 F.R.D. 24) United States District Court, District of Columbia. Elouise Pepion COBELL, et al., Plaintiffs, V. Gale A. NORTON, Secretary of the Interior, et ai., Defendants. U I ~ L I I L L ~ U U I C , Civ.A. No. 96-1285 RCL. iiiai. (1) ULLVILII-J- ~ a i i i u c i LII, J . , ULLU client privilege did not bar deposition question asking trustee's representative what was his understanding of' the nature and scope of the trustee's fiduciary duty, after rprpivinu the nrlvire nf rniinsel as nn~stion fell specific documents. Motion denied. . ._ ~. I - . - . - - - - - Communications between a trustee and its attorneys concerning the administration of the trust fall within the "fiduciary exception'' to the attorney-client . . . . 1L.J V V l l l l t f X i C ~ W A L L 4 1 Ok222 The party that asserts the existence of the attorney- r l l e ~ ~ i ~ T I \ V ~ P O P nnccpq - - '-.----A- be invoked in the particular instance."); Page 3 1 I J '' I he attorney-client privilege protects comiaenriai communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Lindsey, n-ca..a-..+- i A O r: ? a i inn i in? tn 0 r:- i n n o \ L l l l . 3 .."UlU "1 LLU", 11" I," I -a, .." .."*w..-..-..- the "fiduciary exception" to the privilege. ----- ---, communications between a trustee and its attorneys concerning the administration of the trust fall within opinions of counsel procured by the trustee to guide him in adrmnistration of the trust. See Riggs National Bank v. Zimmer, 355 A.2d 709, 712 (Del.Ch.1976) ( quoting 2 SCOTT ON TRUSTS 9 173, at 1407 (3d Star Co., 343 P.bupp. YU6 ( J J . U . L . I Y 5 L ) explainea me rationale behind this exception: FN3. See United States v. Mett, 178 F.3d ln

suugir~ uy piarrr~r~~a "relate [d] solely to its nonfiduciary activities or to the formation, amendment or termination of the pension plan." Id. (emphasis in original). In Martin, a bank trustee had refused to turn over documents pertaining to communications it had made with its attorneys, citing attorney- client privilege. The district court found that +he GA..r;n.-.. nvrn-tlnn u i s , L r u u r r a a j k n b r y b ; w i i U p y J n w u a m - l ; d !O a!! documents except those relating to communications about a Labor Department investigation of the trustee. Martin. 140 F.R.D. at 327. Responding to the trustee's arguments, the court stated: Furthermore, the trustee's allegations, if true, reflect serious failings by the Bank in carrying out its fiduciary obligation as Trustee ... I also note that the communications that would be encompassed within the fiduciary exception do not reflect advice concerning this litigation, and [the trustee] has not shown that the disclosure 1d r-..-nl --., tr As rnrrn+r -+hn-.,iOn WUUIU I L V L ~ I arty r i & r o\rucio Oi w u t s , ~ w ~ o s , adversely affect the Trust. Id. at 326. This little bit of dicta certainly does not stand for the principle that "as long as the attorney-client communications concern the litigation, the fiduciary exception to the attorney-client privilege does not apply--even if the communications also touch on trust administration." Defs' Motion at 3. The LILCC, cise a!sa cantsins no sugges?inn of a presumption against the application of the fiduciary exception. Instead, that case notes that "[tlhe sound proposition that may be drawn from Washington Star is that when the same lawyer gives advice to the employer (i) as employer on matters that are non- fiduciary under ERISA, and (ii) as plan fiduciary, the privileged consultation on non- fiduciary matters does not defeat the fiduciary exception that allows beneficiaries to discover the otherwise privileged communications on fiduciary matters." LILCO, 129 F.3d at 272 (emphasis in oripinal) Lven iiic I\VO case: ciiet; iii;ii aIsuea agaiiisi i broad construction of the fiduciary exception did not find that a presumption should lie against the application of the exception. Hudson v. General Dynamics. 73 F.Supp.2d 201 (D.Conn. 1999), never mentioned any such presumption. That case simply noted that " '[tlhe employer's ability to invoke the attorney-client privilege to resist disclosure Lull,> oii whcthe; 0; not the commiinication concern a matter as to which the employer owed a fiduciary obligation to the . . Copr. Q West 2003 No Claim to Orig. U S . Govt. Works LIL L I C . ~ . L I V I I UL our11 a ~ I ~ ~ U I I I ~ L I V I I . ~ 1 n a . bank Page 5 notes that "beneficiaries are entitled to inspect communications regarding plan administration, whether or not the attorney dispensing the advice is generally consulted regarding nonfiduciary matters," observing that "[aln employer's retention of two lawyers (one for fiduciary plan matters, one for non- fiduciary matters) would not frustrate a plan beneficiary's ability to obtain disclosure of attorney-client communications that bear on fiduciary matters." Mett, 178 F.3d at 1066 (quoting LILCO, 129 F.3d at 272). Moreover, whatever policy arguments can be made in favor of the trustee's need to secure legal advice, the placement of those interests above the beneficiary's need for disclosure is not sound. Clearly, the most heightened duty of ioyaity is the one that the fiduciary owes his or her beneficiary. Varity Corporation v. Howe, 516 U.S. 489, 506, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) ("ERISA requires a 'fiduciary' to 'discharge Bie.VJi?-!h, 680 F.2d 263, ..-"--,.* I-: HIS uuuca a..4:-- .-;&I. w i u icapcLi *- Lu 2 ~ l a ~ s~!e!j~ i~ the iiiteiest of the participants and beneficiaries.' 'I) (citation omitted). And it is that heightened duty that enjoins a trustee to act with an unswerving "eye single" to the interests of the benef;;ci.ries, DnnovLln 1'. 271 (2d Cir.l982), and with "complete and undivided loyalty'' to them. Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 639 (W.D.Wis.1979). Subordinating the interests of the beneficiaries to those of a trustee would offend this rule. Furthermore, advice concerning legal compliance, alternatives, or strategy is part of the ordinary business of a trust and a trustee, and such legal communications and advice permit no claim of privilege. Martin, 140 F.R.D. at 308. A trustee has no "legitimate need'' to "shield his actions from those whom he is obligated to serve." Washington Star, 543 F.Supp. at 909 n. 5. For this reason, defendants' claim that communications that do not relate exclusively to trust matters are "presumptively immune" to disclosure. Defs.' Mot. for j ? f o i c C ~ i \ ' F Oi-c"lCi a i 3 , j g iiiispi&~, [6] The better method is to place the burden on the trustee--who, after all, is the party with access to the does not apply. Thus, in Everett v. USAir Group, an order absent such a showing: deci!rr.ents--tn demnnstra!e that the fiduciary exception ERISA case, the court refused to grant a protective IJSAir, the administrator of the Pension Plan, has not demonstrated that there are attomey-client communications responsive to Document Request 212 F.R.D. 24 YU VLUUC~A (Cite as: 212 F.R.D. 24, *29) Documt.ni w i ~ n i4 days wi& No. 5 that relate solely to its nonfiduciary activities or to the formation, amendment or termination of the pension plan. Nor has it demonstrated that any such documents that may exist are wholly unrelated to plan administration and have not been used in connection with defendants' role as plan administrator. Accordingiy, absent a demonstration by defendants that the attorney-client privilege bars discovery of any particular document sought by Document Request No. 5 , defendants must comply -under. the principles announced herein. 165 F.R.D. at 4-5 (emphasis in original). fnv m l - p k m th;c h > w A e n nn the e ~ s t e e , The veoon- i u b Icaavu XVI yiarirlie LZULI rather than the trust beneficiaries, is to prevent trustees from shielding information about trust adrmnistration from the beneficiaries, who are entitled to that infonnatinn. The Court notes that if the trust beneficiaries and the trustee personally were viewed as ''joint clients" of the trust counsel, the same would result: one joint client cannot invoke the privilege against the other. Garner v. Wolfinbarger, 430 F.2d 1093, 1102 (5th Cir.l970), cited in Martin, 140 F.R.D. at 319; see also Washington Star, 543 F.Supp. at 910 ("An employer cannot, by retaining the same counsel as that used by the plan, defeat disclosure by a plan's attorney of communications between the plan's trustees and the employer. The case law clearly holds that when an attorney represents two parties who later become involved in litigation, neither party may assert the attorney-client privilege."). The fact that the choice of litigation counsel for the trustee in this *30 case may have been preordained by statute (namely, 28 U.S.C. Q Q 5 16 and 547) does not change this result because "the question does not turn on t'he number of iawyers." LILCO, 129 F.3d at 272 ("An employer's retention of two lawyers (one for fiduciary plan matters, one for non-fiduciary matters) would not frustrate a plan oenericiary s aoiiiiy to obtain disciosuic of aiioiiiey- client communications that bear on fiduciary matters."). Therefore, it is defendants who must 3 - ~~~ A -P-?--~,- -L.,:- a: iS'iii u,,< L ,111 c ,112 shoulder 1 , ,.--.. . ' the burden of demonstrating that the X I C l - 5 coi;ce;-:: ::nnfid::c:a:.: matters. [7] The Court will, consistent with logic and prevai!ing authority, recognize the existence of an attorney-client privilege where a trustee seeks legal advice solely in his own personal interest or where the discovery material has been shown to relate exclusively to n o n - f i d ~ ~ c i a ~ matters. [_FNSj SPP LIL.CQ, 129 F.3d at 273; Everett, 165 F.R.D. at 4; Hudson, 73 F.Supp.2d at 202-03. But the Court will not immunize /innc\ /-c.-:-- .L- ---I powers to establish, amend and inodify the terms of the plans and refusing to extend Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works ^ ^ ---. -4- privilege circumstances in which a fiduciary owes a duty of loyalty to beneficiaries may result in the drawing of an inference that the undisclosed communications were adverse to the beneficiaries' interests. Defendants allude to a well-developed distinction in E D l C A :..A---.,-l--,-- tlm-+41,-..-ll b i u o n j u ~ i ~ p i u u ~ i i b ~ u ~ i w b ~ i i aLiuui aiiu uuubiaiy functions to suggest that the material that they wish to shield from discovery might involve non-fiduciary activities by the trustees that are not inconsistent with their duties as trustees. Such "settlor" functionsj as described in an ERISA context, include the creation, amendment, or termination of the trust. [F"7] However, defendants have not articulated any leg~iiimatc non-fidiicial? fu~iciion: or activ.itiec with wh~ch the tr-ustee-delegate night be involved lhat night be analogous to "settlor" fimctions under ERISA. Given the paucity of information tendered to support this argument, the Court will not speculate as to what those activities could consist of. FN7. See Lockheed Corp. v. Spink, 517 U.S. present record. +I.:" *:-- l:&:-"&:-- 4 q J G ' L L v1 UllJ 1111&4LI"ll. Page 6 every communication with counsel simply because it involved some incidental interest, or benefit distinguishable from, but ancillary to, that of the trust beneficiaries. With regard to litigation-related communications, the Court will not recognize the existence of an attorney-client privilege except where a trustee obtained iegai advice soieiy to protect himseif personally or the government from civil or criminal liability, an objective that is inherently inconsistent with his or her fiduciary capacity. [FN6] FN5. Both the Zimmer case and the Restatement (Second) of Trusts 0 173 comment b (1 957) ("at his own expense and for his own protection") suggest that independent legal advice be sought at the trustee's own personal expense. The Court declines to impose such a requirement on the FN6. While the Court concludes that the attorney-client privilege and work product protection may be available as to "any advice a fiduciary obtains in an effort to protect herself from civil or criminal liability," Mett, 178 F.3d at 1066, such assertion of the privilege will not necessarily occur without other consequences, at least as to the civil 1 -..--r. IIIYU'L'XLIUII disclosure u1 -4- a under --A llG.-l..,-:~-,~t against 882, 890, 116 S.Ct. 1783, 135 L.Ed.2d 153 1- ( I Y Y U ) ---I-- DCLLIUI (allllIlllllg LIIC CIIIpIUyFI D 2 12 F.R.D. 24 . - (Cite as: 212 F.R.D. 24, "30) ERISA's fiduciary duties with respect to such actions); Anderson v. Resolution Trust C q . . 66 F.36 956, 960 (8th Ci:.!995) (affirming the plan sponsor's powers to amend or terminate the plan as business decisions, not fiduciary acts); Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benej7t Pension Pian, 24 F.3d 1491, 1497-99 (3d Cir. 1994) (stating that the determination of compensation for purposes of benefit calculations was not a fiduciary act); Belade V. ITT Gorp., 909 F.2d 736, 737-38 (2d Cir.1990) (stating that the exclusion of a specific group of employees was not a fiduciary act). 1 he court notes that the instant iitigation, uniike cases construing l'settlor'l functions in the ERISA context, involves the construction of the Indian Trust Fund appcai iu UG -_ Management -c--.L:-L -. - - - \ *L- Reform Act of 1994 (25 _-.-.. U.S.C. 1 A ------ Q Q *- 4001 L- ci ACY.), UIG aiiiciiuiiiciii UI WIULII WUUIU the exclusive province of Congress, not the trustee. Thus, the question of whether such non-fiduciary functions would preserve any available privileges in this case is ac2deFic. In any event, defefidants have not demonstrated that any of the materials that would otherwise be responsive to the discovery relate solely to any claimed non- fiduciary activities, consistent with Everett, 165 F.R.D. at 4, and LILCO, 129 F.3d at 273. Indeed, they have presented no evidentiary showing of *31 any kind. Accordingly, to the extent that the information that plaintiffs seek relates to the adrmnistration of the trust ahnistration, regardless of any pending litigation, the Court affirms that it must be disclosed. [8] Having established a set of general principles, the Court may now ruie on the soie specific discovery issue at hand--namely, defendants' assertion of attorney-client privilege in response to the question posed to James E. Cason during his deposition by -le:-+:+Tel 1 7%- n7.-mt:A.. --l-+-d t- hA, P-e-..ln piaiiiiiiia Luuiiabi. L iib yubaiiuii ibiaibu LU IVU. Laauii a ,,....,, understanding of the nature and scope of the trustee's fiduciary duty, after receiving the advice of counsel. The information sought in response to the question fall.. sqL!a!-PI\ \\j?lm t12E f!d?!c!a!-\ excepo!: 10 ! i l l attorney- client privilege, whch exempts from protection any opinions of counsel procured by a trustee in order to guide him in the administration of the trust. Defendants have made no showing that the information sought in response to the question posed to Mr. Cason relates solely to non-fiduciary matters. Therefore, the Court finds that the information sought by the question is not protected under the attorney- client privilege. [FN8] Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works (D.C.Cir. 1998) (quoting Linde Thomson Lungworthy Kohn & Van Dyke v. RTC, 5 F.3d 1508, 1515 (D.C.Cir.1993)). If the rule is shown to apply, the opposing party may nonetheless obtain documents that would otherwise be protected under the rule upon a B. Work Product Rule n n n ~ 11 baab. Page 7 FN8. Defense counsel objected to the question solely on the basis that it would aiiegediy reveai materiai protected by attomey-client privilege. Accordingly, the Court deems any other possible objections to the question to have been waived. Defendants also seek a protective order to prevent the disclosure of documents prepared by its attorneys that relate to this litigation, under the work product rule. The work product rule protects (1) documents and tangible things (2) prepared in anticipation of litigation (3) by or for the attorney for a party. Fec1.R.Civ.P. 26(b)(3). The D.C. Circuit has noted the difference between the scope of information protected under the work product rule and under attorney-client privilege, explaining that "[tlhe protection for attorney work product is broader than the attorney-client privilege, but less absolute. Work product immunity covers not only confidential communications between the attorney and client. It also attaches to other materials prepared by attorneys (and their agents) in anticipation of- litigation." In re Sealed Case, 107 F.3d 46, 51 (D.C.Cir. 1997). Thus, the Court does not enquire as to whether the information was contained in a confidential communication between ciieni and anorney Ieiaring 10 the representation; rather, it asks whether the documents containing the information were "developed in the course of [the attorney's] preparation of the Q T X l D T P - U T h A T T T E D 9. ?.A,.--..,. C-d..--l u v v iuuiii, I v u b b L n VL iviaibua I GUGIQI Practice and Procedure Q 202 1 (2d ed. 1994). [9][10][11] The D.C. Circuit has never required that t~ hzve beer? nrenared cnlplw i'""i'-'-" ""'"'J dnccm-egts mAcst he she-. or primarily in anticipation of litigation. Rather, this circuit is in accord with the vast majority of circuits which have held that "the testing question is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." In re Sealed Case, 29 F.3d 'I 5 in.(: Cll.1994~ (cluotln? Smnrc ~ f P u r l 7 o R i m 1 US. D q ' i o j Justice, 823 F.2d 574, 586 n. 42 (D.C.Cir.1987)). The work product rule "has no applicability to documents prepared by lawyers in the ordinary course of business or for other nonlitigation purposes." In re Sealed Case, 146 F.3d 881, 887 c - t 212 F.R.D. 24 without undue hardship to obtain the substantial equivalent of the material by other means.'' Fed.R.Civ.P. 26(b)(3). On the other hand, work product that contains the opinions, judgments, and thought processes of an attorney receives nearly absolute protection from discovery and must be produced only if the opposing party shows an "extraordinary justification" for production. i7ashingron 3ancorporaiiuii V. Said, 145 F.R.E. 274, 276 (D.D.C.1992) "32 (citing In re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982)). p 2 j The colii carlot adjrze, iE a V 2 C X F I whether communications or documents to which defendants might wish to assert a work product privilege warrant protection. The Court has before it only a blanket recitatim ?hit mxiteria! prepared by defendants' lawyers "once the plaintiff IIM trust beneficiaries became adversaries of the defendants" constitutes work product. Defs.' Mot. for Protective Order at 7. Lacking concrete facts, any ruling that this Court might render with respect to defendants' assertion of work product privilege would necessarily be an advisory opinion without binding effect. The Court therefore declines to enter a ruling at this time regarding defendants' generalized assertion of the work product privilege. [m91 FN9. The Court notes, however, that in relation to any otherwise discoverabie documents or tangible things over which defendants assert the work product rule, but not the attorney-client privilege, the Court may order production of such materials upon a twofold showing: (1) that the opposing party has a "substantial need of the materials in the preparation of the party's case" and (2) that the opposing party is "unable without ..-A..- "llUUC haluslly -..A h:. to cbtai:: the Sl?bS!a?til! "ihc equivalent of the materials by other means." Fed.R.Civ.P. 26(b)(3). The Court may not, however, order discovery of so-called "core work product." i.c.. dncirments that contain meniai Iniplcssron>. conciusron~. opinions, or legal theories" of opposing counsel. Id. As defendants correctly state in their reply brief: absent a h.ct??a! record, this Court has no basis fox ruling on the application of the deliberative process, privilege to this phase of the instant litigation. If either Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works ORDER For the reasons stated in the Report and Recommendation of the Special Master- Monitor on be presented in proper Iorm. Lr N 1 UJ Page 8 FNlO. Because neither party has filed a motion pursuant to Rule 53(e)(2) of the Fprlpril ---.-. ---.-I Riilpc ~f Civi! Procedure, the issue of the binding effect of the May 12, 1999 Opinion of Special Master Balarari regarding attorney-client privilege, work product, and the deliberative process privilege is not properiy before the Court. Accordingiy, the Court will make no ruling on that issue at this time. 111. 111 PnNrl V V I .-------. TTCTnN Defendants have failed to meet their burden to establish the existence of attorney-client privilege relating to the information sought in response to the question posed to James E. Cason during his deposition on November 5 , 2002. Defendants have also failed to provide good cause for the issuance of a protective order with respect to the general categories of: (1) communications to or from defendants' attorneys concerning anticipated or ongoing litigation between beneficiaries and defendants in their capacity as trustees and (2) documents prepared with, for or by defendants' attorneys because of this litigation. Accordingly, and for the reasons stated herein, it is hereby ORDERED that defendants' motion for a protective order regarding the appiicarion of attorney-ciieni privilege and work-product doctrine [ 15931 be, and hereby is, DENIED. It is further OrnErnE bht :ar,es E. Cason sha!! respcnd tc the question posed by plaintiffs' counsel during h s November 5 , 2002 deposition, namely,, "[Your] attorneys have never informed you that court decisions, CGFUTGI? !aw, h2ve 29 imp.? OI? how you nlanage the trusts; is that a fair statement?" Any hrther disputes concerning common-law p111 iicpec dmilld lx q x c ~ f i c a l l y addreswd 10 t h Special Master or the Special Master-Monitor, as appropriate, subject to ruling by this Court as provided by Rule 53 of the Federal Rules of Civil Procedure. m - r 212 F.R.D. 24 .. (Cite as: 212 F.R.D. 24, *32) "Motion for Protective Order Seeking (1) Stay of Plaintiffs' Obligation to Respond to Interior Defendants' Request for the Production of Documents, dated June 5 , 2002; (2) Stay of Threatened 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 *33 "Defendants' Motion to Compel Discovery and Testimony of Plaintiff Elouise Cobell at Deposition'' and "Defendants' Motion for Sanctions Regarding Submission of Faise or iviisieading Affidavits by Plaintiffs' Attorney Dennis M. Gingold," which was filed with this Court on October 22,2002, it is hereby ORDERED that defendants' motion to compel discever; [I3861 be GP-ANTED. According!y, it is further ORDERED that within ten (1 0) 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. It is further ORDERED that defendants' motion to compel appearance and testimony of plaintiff Elouise Cobell at deposition [ 14241 be DENIED as moot; it is further ORDERED that defendants' motion for an order Copr. 0 West 2003 N G C!aim tG 0::g. U.S. GGVt. werlrs oAnptb-?g these pgfiigns of Monitor's recommendation regarding depositions of named plaintiffs, and (2) ordering named plaintiffs to appear and testify at depositions [ 1626-11 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 [1625-11 be DENIED as moot. SO ORDERED. 212 F.R.D. 24 END OF DOCUMENT U"" Page 9 adopting the Special Master- Monitor's recommendations regarding plaintiffs' production of documents, and ordering plaintiffs' immediate production of documents [1620-11 be DENIED as moot; it is further ORDERED that defendants' motion 10 expedite consideration of their motion for an order adopting the Special Master-Monitor's recommendation regarding plaintiffs' production of documents, and ordering plaintiffs' iiiiiilediate pro&Liciioii of docuiiien::; [ I62 I - 1; be DENIED as moot. It is further ORDERED that defendants' motion for an order (1) Sppcia] Master- Only the Westlaw citation is currently available. United States District Court, District of Columbia. Defendants. t~ administration of the trust, to compel testimony of deponents, and for sanctions. The District Court, Lamberth, J., held that: (1) government failed to proper!y invoke deliberative process privilege; (2) work product doctrine would protect from discovery only those materials developed exclusively for purposes other than the benefit of trust beneficiaries; and (3) government's assertion of privilege was substantially justified. O L l l C I U .-h;mlA Motions granted. NO. C1V.A. 96-1285(RCL). Feb. 5,2003. &isc!=su:e In action alleging that Secretaries of the Interior and Treasury breached their fiduciary duties by mismanaging individual Indian Money (EM) trust accounts, plaintiffs made consolidated motion to adopt Special Master's opinion and holding that deliberative process privilege and work product doctrine would not materia! :e!ated West Headnotes [ I ] Witnesses -216(1) 4 1 0k2 1 6( 1) Government must establish that the information for which deliberative process privilege protection is soueht IS "predecisional " that IS. that i t was prepared 111 Oldel 1G dSSlSL d l i d g C l l L \ U C i l ~ l U l l l l l d i \ t I 111 d I l l \ l l l ~ at his decision, rather than to support a decision already made; accordingly, to approve exemption of a document as predecisional, a court must be able to piiipiiiit aii ageiic~ decisioii oi po!icf to ~ h k h the document contributed. A 1 GIG? 1 /;/I 1 I v\ I, v- [2] Witnesses G 2 1 6 ( 1 ) 7 1 Primary reason for denying deliberative process Copr. n West 2003 Nn ('!aim t.0 orig. U.S. Gnvt. Works 4 1 Ot? 16(1) Intra-agency memoranda from subordinate to superior [7 ] Witnesses @216( 1) Page 10 privilege protection to information generated after the adoption of agency policy is to prevent the creation of secret law that is unavailable to the public; even if the document is predecisional at the time it is prepared, it [3] Witnesses -216(1) 4 1 Ok216( 1) Implicit in the name of the deliberative process priviiege is the assumption that there must have been a process of decision-makmg, in which the information at issue played a role. pri,,i!ege, te It is not enough, on assertion of deliberative process ?ha? the infGrrr2?iQn .+,J2s during the deliberative process; instead, the statement or document must have been a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. [5] Witnesses -216(1) 4 1 Ok216( 1) Pre-decisional materials are not exempt from disclosure pursuant to deliberative process privilege merely because they are predecisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made. 4 i o-ui q i j ceIIve.,pa J v u U ~ U 1 L . J D C l l Y l L ' "I UvIIYIILIIIu 161 Witnesses @216(1) Two non-conclusive factors that may assist courts in deteimining whether or not an opinion or j f ~ ( j I I U ] l ~ j j & i , ~ j , 1: (jcilberail\ c . aIid i j i U > eiiFjbii io: deliberative process privilege: (1) the nature of the decisionmaking authority vested in the officer or person issuing the disputed document and (2) the v m l o t ; x r o -r\a.t.n-a U,C , b , U L , " L . . y"i)lLI"IID i~ thn n n n n r t r ' c rhnin nf rnmmnnrl occupied by the document's author and recipient. 2003WL255970 2 16( 1) [ 81 Witnesses 4 1 O k 2 1 6( 1) Deliberative process privilege is not absolute but qualified. iSj Witnesses -222 4 1 Ok222 Once the elements of the deliberative process privilege beeii i ~ $ , the tiuibei; ski% !O the partjf opposing the privilege to establish that its need for the information outweighs the interest of the government in preventing disclosure of the information. [ 101 Witnesses -216(1) 4 1 Ok2 16( 1) Discussions of objective facts, as opposed to opinions or recommendations, are not protected by the deliberative process privilege; however, even factual information may be protected if the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are inextricably intertwined with the policymaking process. ,i,c,-lnc-A (Cite as: 2003 WL 255970 (D.D.C.)) on an agency ladder are likely to be more deliberative in character than documents emanating from superior to subordinate, for purposes of eligibility for deliberative process privilege protection from disclosure; conversely, a memorandum from a superior agency official to a subordinate official is more likely not to be considered deliberative. 1:: U 1 . ? L 1 V L 1 L b 1111 Witnesses -216(1) 4 1 Ok216( 1) Exception protecting factual information from disclosure under deliberative process privilege cannot be read so broadiy as to u n d e d i i e the basic rule that discussions of objective facts are not protected by the privilege; in most situations factual summaries prepared for informational purposes will not reveal ,>,-A L'3.,r, .l.-,,'+ dr]i;;ei.aii.,.c r.--"--c.-c ',c!cL>>c: a,,u I , C I , C \ : , , I ' U , L 1121 Witnesses -216(1) 4 1 O k 2 1 6( 1) If the factual material is severable from the information protected under the deliberative process privilege, the former must be disclosed. [ 131 Witnesses -21 6( 1) 4 1 O k 2 16( 1) Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works 1181 Federal Civil Procedure -1600(3) 1171 Federal Civil Procedure -1600(3) 170Akl600(3) Work product doctrine would protect from discovery by Individual Indian Money (IIM) trust beneficiaries only those materials developed exclusively for purposes n?her ?ha= the benefit of t r u s t beneficiaries, i.e. solely to aid in litigation, and the litigation anticipated could not be intended to benefit trust beneficiaries; if documents served a dual purpose, the doctrine would not prevent disclosure to beneficiaries. Page 11 Drafts of agency orders, regulations, or official histories are routinely deemed to be protected by the deliberative process privilege. U USL, d l U l U U g l l [14] Witnesses 0 2 2 0 4 1 ok220 Government failed to properly invoke deliberative process privilege for documents submitted with court monitor's report, fiied witin tine district court under seai, and thus dispute regarding whether documents were protected from disclosure could not be addressed, in action alleging Department of Interior had mismanaged I A l-J:-- ----. I T T h A \ l-.l:-.:L.-l lJlUlVlUUdl lllUldlJ IVIUIIGY (1llVl) - 1 b L -__- L government would be provided opportunity to properly invoke the priviiege; nead of bureau or office w i h Interior Department possessing control over requested ir,fGm*atim. 16(1) [ 151 Witnesses -2 410k2 16( 1) [IS] Witnesses -220 4 1 Ok220 Proper invocation of the deliberative process privilege requires: (1) a formal claim of privilege by the head of the department possessing control over the requested information, (2) an assertion of the privilege based on actual personal consideration by that official, and (3) a detailed specification of the mformation for which the privilege is claimed, along with an explanation why it properly falls within the scope of the privilege. ii6j Federai Civii Procedure G i g 0 0 170Ak1900 District court reviews conclusions of law made by the special master de ~ O V O . . I 2003 WL 255970 (Cite as: 2003 WL 255970 (D.D.C.)) 170Akl600(3) On its face, the attorney work product doctrine rule does not give an attorney the right to withhold work product from his own client, and in fact it has been specifically read as not requiring such a result; this result is hardly surprising in view of the evident inapplicability of the rationale for the work-product rule to an attorney's efforts to withhold the h i t s of his professional labors from the client, who presumably paid for and was the mtended beneficiary of those labors. 1191 Trusts -289 as part ef this Gf the *List; obligation, the trustee must make available to the beneficiary, on request, any communications with an attorney that are intended to assist in the adrmnistration 390E89 Trustee possesses an obligation to provide full and accurate information to the trust beneficiaries regarding ..A-:..:-i-.-*.n.. 4L,. a u l . I I I I I J L I a I ; " I I LllG nf the @!St. [20] Federal Civil Procedure -1278 170Ak1278 District courts are entrusted with broad discretion regarding whether to impose discovery sanctions, and the nature of the sanctions to be imposed. Fed.Rules Civ.Proc.Rule 37,28 U.S.C.A. [21] Federal Civil Procedure -1636.1 170Ak1636.1 Government's assertion of deliberative process privilege and work product doctrine was substantially justified, and thus sanctions were not proper, for discovery matters in action by beneficiaries of individuai Indian Money jiilLij iiiisi funds, aiieging mismanagement by the government; at time the privilege and doctrine were asserted, no ruling had established the general applicability of those doctrines J L u . J \ u i L : ii' i h c ijisiajii i i ~ i K ? , A E . , L ' C>.\'.P'ioc.Rtiit 37(a)(4)(A), 28 U.S.C.A. Keith M. Harper, Lorna K. Babby, Native American Rights Fund, Washington, DC, Dennis Marc Gingold, washi??-gtnn, DC, F!!iott Stockton, LLP, Washngton, DC, for Plaintiffs. H* Levitast Ki!patrick J. Christopher Kohn, U.S. Dept. of Justice, Commercial Litigation Branch, Ben Franklin Station, Washington, DC, Brian L. Ferrell, US. Dept. of Justice, ENRD, Ben Franklin Station, Washngton, DC, Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works p.,{aihe-iY. J. lZ-A-- L ' a u a , Page 12 Mark E. Nagle, Robert Craig Lawrence, Scott Sutherland Harris, US. Attorney's Office, Washington, DC, Charles Walter Findlay, 111, Ben Franklin Station, Washington, DC, Henry A. Azar, Jr., U.S. Dept. of Justice, Federal Programs Branch, Washington, DC, Seth Brandon Shapiro, Phillip Martin Seligman, Michael John Quinn, U.S. Dept. of Justice, Civil DivisionBen Franklin Station, Washington, DC, Jonathan Brian New, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, Washington, DC, Gino D. Vissicchio, jennifer K. Rivera, Tracy iyie Hilmer, U.S. Dept. of Justice, Civil Division, Washington, DC, Sandra Peavler Spooner, David J. Gottesman, Peter Blaze Miller, Cynthia L. Alexander, J05i J. J05,? TX7..-0h,...r0L v v aLxiawanf, Siemietkowski, Amalia D. Kessler, U.S. Dept. of Justice, Commercial Litigation Branch, Washiugton, DC, John Charles Cruden, U.S. Dept. of Justice, FnVirQn-men? & Nama! R_esourr.es Division, Annandale, VA, John Stemplewicz, U.S. Dept. of Justice, Ben Franklin Station, Civil Division, Washington, DC, John R. Kresse, Timothy E. Curley, U.S. Dept. of Justice, Civil Division-Commercial Litigation Branch, Washington, DC, Dodge Wells, U.S. Dept. of Justice, Washington, DC, Daniel Gordon Jarcho, Herbert Lawrence Fenster, Michael James Bearman, McKenna, Long & Aldridge, LLP, Washington, DC, B. Michael Rauh, Manatt, Phelps & Phillips, LLP, Washington, DC, for Defendants. no! &ie!d L. I - * - ---r- MEMORANDUM OPINION LAMBERTH, District Judge. *1 This matter comes before the Court on plaintiffs' consoiidated motion ( i j for an order pursuant to Xuie 53(a)(2) of the Federal Rules of Civil Procedure adopting Special Master Alan Balaran's May 11, 1999 opinion and holding that the deliberative process pii"i:"gc . . aii(j from disclosure material related to the administration of the IIM Trust, (2) to compel the testimony of deponents that defendants directed not to answer ~ ~ ; ~ ~ ~ > e ~ ~ : 0:: lj?c- h.;::: of ci.r!jberz!>\,~ nT-ncpz< nn\~iIeiic and (3) for sanctions pursuant to Rule 37(a)(4)(A), which was filed on December 30, 2002. Also before the Court are five motions relating to the application of the deliberative process privilege to a sealed document attached as an exhibit to the August 8, 2002 Special Report of the Court Monitor. r' .'. ~ Each of the motions presently before the Court turns on whether information for which defendants have asserted privilege falls withm the scope of the 2003WL255970 c (Cite as: 2003 WL 255970, *1 (D.D.C.)) deliberative process privilege. Accordingly, before turning to the individual assertions of privilege, the Court will examine the contours of the deliberative process privilege in order to determine the scope of materials that it protects. m, A recent case from this Circuit provides a useful overview of the deliberative process privilege: Ine frequent fom W f e.xec.uii.ve pii.v.ilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would r.+..m*r.nc . . ievea! ~ l , , . - l l , : o f i - , a" Y l 0 U l J VyIIIIVIIo, recGFmendatiens ax! deliberations comprising part of a process by whch governmental decisions and policies are formulated." Although this privilege is most com-monly encountered in Freedom of Information Act ("FOIA") litigation, it originated as a common law privilege. Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. Both requirements stem from the privilege's "ultimate purpose [, which] ... is to prevent injury to the quality of agency decisions" by allowing government officials freedom to debate alternative approaches in private. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricabiy intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations. -* I ne dei UCIUIL UIG LlgGllLy &Cisiccr.(( established its final policy," and (3) "protect[ing] the integrity of an agency's decision[, in that] the public should not judge officials based on information they cefisidered prier tQ iswing their fc.! AZexander v. FBI, 192 F.R.D. 50, 55 (D.D.C.2000) (citing Judicial Watch it. Clinzcin, 880 F.Supp. 1, 12 (D.D.C.1995)). It is important to keep these purposes in mind when evaluating the scope of information that the privilege should protect, because it stands to reason that its scope should not exceed the scope of the purposes that it serves. [ 1][2] In order to assert the privilege, the government must establish two elements. First, the government must establish that the information for which protection is sought is "predecisional," that is, that it was "prepared in order to assist an agency decisionmaker in arriving at h s decision, rather than to support a decision already made." Petroleum Information Corp. v. U S . Dep't of the Interior, 916 F.2d 1429, 1434 (D.C.Cir. i992j (quoting Renegotiation Bci. v. Grumman Aircrafi, 421 U.S. 168, 184, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975)). "Accordingly, to approve exemption of a document as predecisional, a c.ourt must L- -L1- ut: a u ~ io piiip~iiit aii agency decisioii oi p o l i ~ j to which the document contributed." Senate of Puerto Rico v. US. Dep't of Justice, 823 F.2d 514, 585 (D.C.Cir. 1987) (internal quotation omitted). The primary reasar? mr der?yir?g prr\!ectir\?? to infnmminn generated aftel- the adoption of agency policy is to prevent the creation of "secret law" that is unavailable to the public. See Tax Analysts v. IRS, 117 F.3d 607, 61- K.C.Cii.j??- i " C stion? rliemc o! ou: [deliberative process] opmions has been that an agency will not be permitted to develop a body of 'secret law' . * m a 2003WL255970 (Cite as: 2003 WL 255970, "2 (D.D.C.)) [3][4][5][6][7] Second, the government must show that the information at issue was "deliberative" in nature. Implicit in the name of the privilege is the assumption that there must have been a process of decision- making, in whch the information at issue played a role. See Coastal States, 617 F.2d at 868 ("It is also clear that the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process.") (citing Vaughn v. Rosen, 523 F.2d I 156, i 146 (D.C.Cir.i975jj. it is not enough to show that the information was conveyed during the deliberative process; instead, the statement or document must have been ''a direct part of the delibeiative piocess iii that iI i i i ~ k ~ s iecoi;;iefida::lons. or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are predecisional; they must also - .^ be a par! Gf ?he 2gency give .r?d-take of the deliberative process by which the decision itself is made." Vaughn, 523 F.2d at 1144. Case law from the D.C. Circuit points to two non- conclusive factors that may assist courts in determining whether or not an opinion or recommendation is "deliberative": (1) the "nature of the decisionmaking authority vested in the officer or person issuing the disputed document" and (2) "the relative positions in the agency's chain of command occupied by the document's author and recipient." Senate of Puerto Rico, 823 F.2d at 585 (internal quotations and citations omitted). Thus, for example, "[ilntra-agency memoranda from 'subordinate' to 'superior' on an agency ladder are likely to be more 'deliberative' in character than documents emanating from superior to subordinate." Schlefer v. United States, 702 F.2d 233, 238 (D.C.Cir.1983) (citing casesj. Converseiy, a memorandum from a superior agency official to a subordinate official is more llkely not to be considered "deliberative." Id. "j [qq if the Juvr;iiuiiciii C;biduii>iic> --&.LlLL-- &La,.- iiicac +.-,- i w u elements with respect to the statement or document at issue, it has demonstrated the existence of the deliberative process privilege. It should be noted, I t', ' !::.I,\ i'nai "[a]i a n.~Il~-Ii.mT.h Ll. - U'b IIIILjLLLIVI., ~""L-IIUIIL-,I1 -1 Lnc court must consider: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence, (iii) the keriousness' of the litigation, (iv) the role of the Ul*U \ * / Ulb yV.7L1LvII.L Y th- -no&hil&r of future timidity by government employees who will be forced to recognize that their secrets are violable." Id. at 220-2 1. [ 1 O][ 1 1][ 121 It has been said that "general guidelines are of limited utility in this area, for the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process." Senate of Puerto Rico, 823 F.2d at 585. Nevertheless, courts have established some useful guidelines regarding the sort of information that is likely to fall within the scope of the privilege, as well as the sort of information that is likely to fall outside its bounds. Thus, it is well- established that discussions of objective facts, as opposed to opinions or recommendations, are not protected by the privilege. See, e.g., In re Subpoena Served Upon Comptroller of Currency and Sec. of Bd. of Governors of Fed. Reseive Sys., 967 F.2d 630, 634 (D.C.Cir.1992) ("The bank examination privilege, like the deliberative process priviiege, s.niei& from discovev 0,niY agencq. opinions or recommendations; it does not protect purely factual material.") (citing EPA v. Mink, 410 U.S. 73, 90, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). However, even fackia! izfomiitio~ may be protected if "the mamer of selecting or presenting those facts would reveal the deliberative process, or if the facts are 'inextricably intertwined' with the policymaking process.'' Ryan v. o ' h . v ~ i ~ ~ ~ h j - 1 2 6 SE I I 790 (D C Cir 1 9 x 0 I (citing Monirose Chem. Corp. v. Train, 491 F.2d 63, 68 (D.C.Cir.1974) and Soucie v. David, 448 F.2d 1067, 1078 (D.C.Cir. 197 1)). "But h s exception cannot be read so broadly as to undermine the basic rule; in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed." Paisley v. CIA, 712 F.2d 686, 699 (D.C.Cir.1983), vacated in part on other grounds, 724 F.2d 201 (D.C.Cir.1984). Moreover, if the factual material is severable from the _.._ 3007 WL. 255970 - (Cite as: 2003 WL 255970, *3 (D.D.C.)) information protected under the privilege, the former must be disclosed. See, e.g., United States v. Exxon Corp., 87 F.R.D. 624, 636-37 (D.D.C.1980) (ordering the Department of Energy to excise factual materials from information protected by the privilege and provide the factual information to the opposing party). *4 [ 131 Other general conclusions may also be derived from the case law. Drafts of agency orders, regulations, or official histories are routinely deemed to be protected by the privilege. See, e.g., Dudman Communications Corp. v. Dep 't. of the Air Force, 8 15 F.2d 1565 (D.C.Cir. 1987) (protecting draft manuscript - of .. official history of Air Force involvement in viemam); Arthur Andersen d Coo. v. IiiS, 679 F.2d 254 (D.C.Cir.1982) (protecting draft of IRS revenue ruling); Pies v. IRS, 668 F.2d 1350 (D.C.Cir.1981) (protecting draft of proposed IRS regulations). Additionally, the E.C. Circui: has stated that the privilege covers recommendations, draft documents, proposals, suggestions, and other subjective dc!cl.ments which reflec? the persona! opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency; "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmalung process." We also ask whether the document is recommendatory in nature or is a draft of what will become a final document, and whether the document is deliberative in nature, weighing the pros and cons of aFency adoption of one . . . .. . . __ I \ ' i t - \ \ jiuini I?; aiioiii?; Coastal Slates, 617 F.2d at 866 (quoting United States v. Nixon, 418 U S . 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1 974)). 11. THE ATTACHMENT C MOTIONS [14] On August 8, 2002, Court Monitor (now Special - Mnster-Monitor) - - - -- - - - ___. - . Joseph S. Kieffer I11 ("the Monitor") filed a special report with this Court. [FNl] Submitted with the Special Report was a document located at Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works *-A. ' I ~ L Y I I Y I I " .L Attirhm~pt P v fell 1 1 1 . IY1 thP L1.V .,I" Page 15 Attachment C that was filed with the Court under seal ("Attachment C"). On October 18, 2002, in response to motions filed by both parties, the Court directed the Monitor to provide counsel for the parties with copies of Attachment C under seal. The Court also ordered counsel to honor the seal on the document, limiting access to Attachment C and any communications about it only to personnel in their offices who would be required to view or discuss the document in order to prepare submissions by counsel. Finally, the Court ordered tine parties to fiie any portion of their future submissions to the Monitor that referred to the content of Attachment C under seal. Iii ii ktki bated Ckiobei 21, 2002, the Moiiitoi directed the parties to file briefs addressing the further disposition of copies of Attachment 2. Defendants filed their brief under seal on October 24, asserting that crnpe ~ f ' the deliber~tive -_,__+I._ __--_-- :-- nitbin process privilege. [FN2] The next day, plaintiffs filed a reply brief under seal requesting that the Court unseal Attachment C. On November 9, defendants filed a further response in support of their request that Attachment C remain sealed. Defendants filed two further motions requesting that the Court strike references to the content of Attachment C that were made by plaintiffs' counsel during a November 5, 2002 hearing, and in plaintiffs' second reply brief in support of their request that Attachment C be unsealed. *5 Each of these motions turns on whether the contents of Attachment C fall under the protection of the deliberative process privilege. However, the Court is unable to make a determination regarding the application of the privilege to Attachment C because fhe government has not properly invoked the privilege. [15] In this Circuit, the proper invocation of the privilege requires: (1) a formal claim of privilege by A ~ - L--J -L-*L- J------& LIlC IlCau 0 1 LllC UCpalllllclll pu~>c>>lllg LVIILIL): UVGI UIG requested information, (2) an assertion of the privilege based on actual personal consideration by that official, and (3) a detailed specification of the information for \ , + . ~ : : ~ ~ 1;;~ T - T I I . ~ ~ P ~ ( 1: L ' L : I'A ' ~ cl;!ii??ri. a ] ~ n r \\)il]; 2:. explanation why it properly falls within the: scope of the privilege. Landly v. FDIC, 204 F.3d 1125, 1135 (D.C.Cir.2000); see also Northrop Corp., 751 F.2d at 405 n: 11 ("Assertion of the deliberative process privilege ... requires a formal claim of privilege by the head of the department with control over the information. That formal claim must :include a description of the documents involved, a statement by the department head that she has reviewed the documents involved, and an assessment of the _ _ 3001 ._ WT, 255970 , " , , I \ . v,,,l,<>. F.3d at 1136. In Koehler v. United States, 1991 WL (Cite as: 2003 WL 255970, *5 (D.D.C.)) consequences of disclosure of the information."); Wainwright v. Washington Metropolitan Area Transit Authorify, 163 F.R.D. 391, 396 ("To qualify for the privilege, documents must be reviewed by the agency head, who must file a formal declaration of privilege describing the withheld materials and the likely consequence if they were to be disclosed."); Bigelow v. District of Columbia, 122 F.R.D. 111, 113 (D.D.C.1988) (''In order to properly invoke the privilege, the head of the agency which controls the information must file a formal clam of priviiege which shall describe the documents involved, affirmatively state that he or she has reviewed the documents and set forth an assessment of the likely consequences if the information is disciosed."j; Founding Church of Scientology of Washington, D. C., Inc. v. Director, FBI, 104 F.R.D. 459,464 (D.D.C.1985). the E.C. Ckcujt exp!a&y,7ed .+ky In has not construed the term "head of the department'' narrowly: The procedural requirements are designed to I---' ---o-- nrivileopc are presented_ in a deliberate, considered, and reasonably specific manner. As we have seen, built into the requirements is the need for actual personal consideration by the asserting official. Insistence on an affidavit from the very pinnacle of agency authority would surely start to erode the substance of "actual personal" involvement. Further, [the privilege advances] important goals; the gains from imposing demands in the interest of carefbl assertion must be balanced against the losses that would result of imposing superstringent standards. > U , , L ' \ 1 Z 1 " l i . ensure that Landiy, 204 F.3d at 1135-36 (internal quotations and citations omitted). Thus, for example, in Tuite v. Henry, 98 F.3d 1411, 1417 (D.C.Cir.1996), counsel for the Justice Department's Office of Professional Responsibility, rather than the Attorney General, was permitted to invoke the iaw enforcement investigatory- privilege, the formal requirements of which are virtually identical to those of the deliberative process FDIC': (ji.,.;s;o;; of C I I , ~ c . T I . ; L 1 n , - privilege. In Landiy, the court permitted the regional djieiiij; \?f than the head of the FDIC, to assert the deliberative process and law enforcement privileges. Landry, 204 277542 (D.D.C.!99!), this caul? pemlitted the cornmanding general of the U.S. Army Criminal Investigation Command, rather than the Secretary of the Army, to invoke the criminal investigation privi!ege, the requirements of which are similar to those of the deliberative process privilege. Moreover, in Alexander v. FBI, 186 F.R.D. 154, 166-69 Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works information to file the necessary affidavit. Page 16 (D.D.C.1999), although this Court found that the elements of the law enforcement privilege had not been met, it never stated that it would have been necessary for the Secretary of Defense to assert the privilege, rather than the Inspector General and General Counsel of the Defense Depaxtment. Accordingly, it is unnecessary for the Secretary of the Interior herself to file an affidavit in order to assert the deliberative process privilege; rather, it will be sufficient for the head of the bureau or office within the Interior Department that possesses connoi over tine requested *6 Defendants will be provided with an opportunity to confomfi .with the ieqiib-emeii;s for proper invocation of the privilege. Plaintiffs will then be afforded an opportunity to submit a statement setting forth the reasons why the information is not pr:-;i!e"-A 6''u~ 2s .J;eil 2s -?&y they ; , ? f ~ ~ ~ t i n n SU'Ufit aii affidav.ii contained in Attachment C. Defendants may t.hen file a reply to plaintiffs' statement. The Monitor will determine whether the information is privileged and, if soi whether plaintiffs' need for the information outweighs the interest of the government in preventing disclosure of the information. The Monitor will then issue a recommendation as to whether Attachment C should remain under seal, as well as a recommendation on the five pending motions concerning the disposition of this document. His recommendation will be subject to review by this Court as appropriate, upon objections made by either party. Future assertions of the deliberative process privilege with respect to documents will be assessed by the Court in accordance with the following procedure. If defendants assert the priviiege with respect to any document, plaintiffs must file a motion to compel with either the Special Master or Special Master-Monitor, depending on which official is overseeing discovery iiiiioliiing ihe bociiiiieiii iii i ~ ~ i i e . If befeiidaii:~ fi!e aii opposition brief to plaintiffs' motion to compel, defendants may include with it a cross-motion for a protective order. Defendants must submit an affidavit c!?!?jo]~1?g!?' \4.::1 ? h C :c "l.!]! F!??p!J!$ in: ? l ? \ Y A q ?]?t privilege on or before the date that they file their opposition brief. Failure to submit an affidavit that conforms with these requirements on the date that defendants file their opposition brief will be deemed to constitute a waiver of defendants' objection to production of the document on the basis of the deliberative process privilege. Additionally, on or before the date that defendants file their opposition brief, defendants will be required to submit the document to the Special Master or Special Master- - . L c 2003 WT, 255970 (Cite as: 2003 WL 255970, "6 (D.D.C.)) Monitor, as appropriate, for in camera inspection. In camera submission will enable the Special Master or Special Master-Monitor to make a timely recommendation to the Court regarding the application of the privilege, and will reduce the burden of defendants because the affidavit need not conform to the "same degree of specificity as in a case where [the Court] was relying on the affidavit [alone] to decide whether valid grounds existed for assertion of the privilege." Black v. Sheraton Corp. of Am., 564 F.2d 531, 543 (D.C.Cir.1977). Plantiffs \nil fhen be afforded an opportunity to file a reply brief with the Special Master or Special Master-Monitor setting forth the reasons why they need the information contained in the document. Tie Speciai Kasrer or Speciai iviasier- Monitor will then make a decision or recommendation as to the applicability of the privilege to the deposition testimony for which it is being asserted. His decision or recoTuT,eii&;ioii .w;!! be sut;jec: ieview by t+;s caue as appropriate, upon objections made by either party. 111. PLAINTIFFS' MOTION TO COMPEL "7 Plaintiffs have also moved to compel the deposition testimony of several witnesses for which defendants have invoked the protection of the deliberative process privilege. The two leading commentators on the federal courts have stated that "[a] motion to compel a witness to answer questions put at a deposition should be granted if the questions are relevant and proper and denied if the questions call for privileged information." 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure 9 2286 (2d ed. 1994). Defendants have made no assertion that the questions propounded by plaintiffs during the depositions at issue were irrelevant or improper. Accordingly, the Court must determine whether the questions called for answers that would reveal information protected under the deliberative process priviiege. As another court has noted, the difficulty inherent in this situation results from the fact that "most of the .,3.jiicj; aiial:,.zc iiiai a: ihr> \ijrii jjiepai ~6 i i , anticipation of litigation on behalf of the plan beneficiaries. The burden is on them, however, to demonstrate that the information and documents __.--- wclc iii fact prepaid in anticipaft~~ ~f such litigation and not for the benefit of the plan beneficiaries. Id. at 5. Similarly, in Martin v. Valley Nat'l Bank of Arizona, another ERISA case, the employer's former counsel Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works by another party in the context of litigation. Thus the rule states in relevant part that "a party may obtain discovery of documents ... otherwise discoverable under subdivision (b)(l) of this rule and prepared in anticipation of litigation or for trial by or for another party ... only upon a showing Page 19 sought to shield documents from the beneficiaries of the ERISA plan by asserting the work product doctrine. The court granted the beneficiaries' motion to compel the documents, explaining that [tlhe point of the [work product] rule is to protect the integrity of the adversary process. It is therefore not surprising that the very language of Rule 26(b)(3) limits its scope to discovery efforts the purfy seektrig &s,-coveiy has substantial need of the materials." (emphasis added). On its face, then, the rule does not give an attorney ?he right te witbhc!!d l?Jc!rk prdlla from his O W " client, and in fact it has been specifically read as not requiring such a result. This result is hardly surprising in view of the evident inapplicability of the rationale for the work-Droduct rule to an Indeed, the result for which Webster & Sheffield presses would be strikingly inconsistent with the accepted principle that an attorney is obliged to serve in a fiduciary capacity to protect the client's interests. Having been hired to serve the client, the attorney cannot fairly be authorized to subvert the client's interests by denying to the client those work papers to which the client deem it necessary to have access. Martin, 140 F.R.D. at 320 (citations omitted). beneficiaries of a will filed jufi Additionally, in Lawrence v. Cohn, 2002 WL 109530 ($JN*'r'.2QQ2j, against the executor for federal securities fraud. The beneficiaries sought production of documents prepared by the executor's law firm during an earlier action 5 i ' , , , , I 7 7 3 1 d ? C C>%CC'.~I<>! I!- !?bG!!!; ix!?!lc~.!~l; !!-nil? !!I! ., , 'Ij court in his fiduciary capacity about how to manage an aspect of the estate, which the firm claimed was protected by the work product doctrine. Id. at *4. The C O ~ R refilsed ?c! pemd the firm to assert the work product doctrine to sheld the documents prepared in the earlier proceeding: *11 As for the claimed work-product protection for notes and memoranda pertaining to the [earlier] proceeding, the difficulty for [the firm] is that, insofar as the firm represented Cohn in his 2003 WL 255970 beneficiaries. Indeed, it was precisely for t h s reason that Cohn was required to obtain separate counsel to represent him personally. An attorney may not withhold work product from Cohn in his fiduciary capacity, as It plainly aia 111 the [earlier] proceeding, the same result applies here. Id. at *6 (citations omitted). -1.- """In Oyy'J ",,U - - ^ - J -----*-' difficulty in the instant case, of course, is whether the work product doctrine should apply when the documents at issue do not exclusively concern the ndministmtinn nf the tnist or other matters imdicating - they "obtained legal advice solely to protect [themselves] personally or the government from civil or criminal liability, an objective that is inherently inconsistent with [their] fiduciary capacity." Mem. and where the material is developed exclusively Tor purposes other than the benefit of trust beneficiaries, i.e., solely to aid in litigation. If the documents serve a dual purpose, the doctrine will not prevent their -----I *L- ... .'*I- plVu""& y'".'.,""" . A * . T ~ - ~ - - P - l _ - l - - i i i i " L A : L ' L J L _-__ L 2 1 L L X ~ L X L J ~ J L ~ C . - .. 1 J l ~ ~ l L l J l J ~ J 1 I L l L l c l a i ~ ~ I I C I V I I I I \ nioieover, must not be litigation that is itself intended to benefit the trust beneficiaries. See Everett, 165 F.R.D. at 5. While the Court does not intend to deter ----.I -- I---------____ ~ . G A l r i a r i e c even thnw in hreach nf their oblieations The Court now turns to the question of whether the: Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works Page 20 Special Master Opinion concluded, on a more specific and better developed record, that "the only documents whch need not be produced because they fall squarely within the rubric of 'work-product' are those prepared . . . _ Master upimon ar 14. ine LOU^ imub no reawn LO disturb t h s conclusion, and accordingly, it will adopt the conclusions of the Special Master Opinion regarding the work product doctrine as the law of this . _ The instant memorandum opinion determines the metes and bounds of the deliberative process privilege ~ T ~ P P A ~ V Q ~ ---.-. --_- - - __ - . . ___ -. . documents or information they seek to shield as work product with greater specificity, so that the Court may make an informed determination as to whether they constitute work uroduct. Additionally, defendants arising specifically in this litigation, and defendants have made an adequate showing that such communications were not created for the IIM beneficiaries' benefit, plaintiffs will then be required to L. Ueliberarive rrocess rriviiege --I- :- :--+--+ 1-11 1 . 4 adopt the portions of the Special Master Opimon relating to the application of the deliberative process privilege. sanctions under Rule 3?(a)(4)(A)-of the Federal Rules of Civil Procedure. That rule provides, in relevant part, _. _. . . ~ . . - nc+nhl;chnc c . r--- --A uT' ...-.. I _ . -. . . _ I 2003WL255970 (Cite as: 2003 WL 255970, *12 (D.D.C.)) that if a motion to compel disclosure or discovery is granted, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court fmds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances _- ---I.- IlldKG dl1 dWdlU U1 CApGIl>G3 UIIJUJL. -c -~~ ------ ..-A,-+ It is well-established that district courts are entrusted with broad discretion regarding whether to impose sanctions under Rule 37, and the nature of the sanctiens !e be LEIpsed. B Q n h v. Di$!f-iC! of Columbia, 93 F.3d 801, 808 (D.C.Cir.1996); Sturgis v. Am. Ass'n. of Retired Persons, 1993 WL 518447 (D.C.Cir. 1993) (per curiam); Sleffan v. Cheney, 920 F.2d 74; 75 (D.C.Cir.1990). "The Supreme Court has stated that a party meets the 'substantially unjustified' standard when there is a 'genuine dispute' or if 'reasonable people could differ' as to the appropriateness of the motion." Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see uZso 8A Wright, Miller & Marcus, Federal Practice and Procedure 0 2288 (2d ed. 1994) ("Making a motion, or opposing a motion, is 'substantially justified' if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery ruie."j. "13 [21] At the time that defendants made their assertions of the work product doctrine and d&'oerafve lj>f 1::::: !!:a! piivi:ege, there deff:??..!?:: ::]v(>k:cf !]!?S{ rG!iiig by this Court that had established the general applicability of those doctrines to this case. As explained above, the Court had not adopted the Special Master Opinion at ~ p ~ : ] - ] ~ ~ ~ : . y!I Court finds that when defendants' assertions were made, the parties could reasonably differ about whether the deposition testimony at issue was protected under the de!iherative process privilegei and whether the documents and things at issue constituted work product . Accordingly, the Court concludes that the objections were "substantially justified" for purposes of Rule 37(a)(4)(A): and it will deny plaintiffs' motion for sanctions. Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works Page 21 A separate order shall issue this date detailing the legal conclusions and relief granted by the Court. special ivlastei I--:&-- ORDER For the reasons stated in the memorandum opinion issued ihis date, it is hereby ORDERED that defendants shall have seven (7) days from the date of this Order in which to submit to the -"v UllllUl /llrL- LIIG l V l U l l l L U l nn--:&--ll\ j an affidavit that conforms with the requirements for proper invocation of the deliberative process privilege with respect to Attachment C of the August 8, 2002 Special ("P.ttacheI?! C"). I? is h?&cr K e p t d t h e ?.!xitG: ORDERED that plaintiffs shall have seven (7) days from the date on which defendants submit the above- mentioned affidavit to the Monitor in which plaintiffs may submit a statement to the Monitor setting forth the reasons for their need of the information contained in Attachment C in the instant litigation. It is further ORDERED that defendants shall have five (5) days from the date on which plaintiffs submit the above- mentioned statement to the Monitor in which defendants may submit to the Monitor a reply to plaintiffs' statement. It is firther ORDERED that if plaintiffs file with the appropriate special master a motion to compel the production of any document for which deiendants have asserted fhe protection of the deliberative process privilege, then on or before the date that defendants are required to file their opposition brief, defendants shall (1) submit an affi(javit I 0 the approprla~e speciai master from rfic head of the bureau or office having custody of the document that describes the document in general terms, explains why the privilege should apply, and states in beta;! the ham that vmdd :esu!t frm? disc!os??re, and (2) submit the document to the appropriate special master for in camera inspection. Any failure lo comply with these two requirements on the date that defendants zi:ce!'i aii n!?iec~icir h s e d 01; thc deliheratnc prices: privilege will be deemed to constitute a waiver of defendants' objection to production of the document on the basis of the deliberative process privilege. If defendants comply with the above-mentioned requirements, then on or before the date that plaintiffs are required to file their reply brief, plaintiffs shall submit a statement with the appropriate special master that sets forth the reasons for their need of the information contained in the document. No hrther filings by either party will be permitted except by - v x q 3 WT 3 5 v - m (Cite as: 2003 WL 255970, *13 (D.D.C.)) express leave of the Court. It is hrther *14 ORDERED that plaintiffs' motion to compel testimony of deponents defendants directed not to answer questions on the basis of deliberative process privilege [1691-21 be, and hereby is, GRANTED. It is further ORDERED that if defendants assert any future objections based on the deliberative process privilege with respect to a witness at a deposition, plaintiffs wiii have seven (7) days from the date on which defendants made their assertion to submit to the. appropriate special master a copy of the unanswered questions, together wifh a detailed Statement setting out the reasons why plaintiffs need answers to these questions. Within seven (7) days from the date that these documents were filed with the Court, defendants shall - J J L < . & , (1) file an af&javii -with the from the head of the bureau or department possessing control over the requested information that contains (a) an assertion of the privilege based on actual personal consideration by that officia!, @) a detailed specification of the information for which the privilege is claimed, along with an explanation why it properly falls withm the scope of the privilege, and (c) a detailed statement of the harm that would result from disclosure of the information that falls within the scope of the privilege; and (2) file under seal with the appropriate special master a detailed summary of the responses that the witness would have provided if defendants had not asserted the deliberative process privilege. Any failure by defendants to comply with these two requirements within seven (7) days will be deemed to constitute a waiver of the objection. It is further ORDERED that plaintiffs' motion for an order pursuant to Rule 53(e)(2) adopting Special Master Baiaran's May i i , i999 opinion ji69i-ij be, and hereby is, GRANTED in part and DENIED in part. It is further ~j~~~~~~~~ iilai scciiiji; 1; oi C.-r.-.Fl C y h n - 1u L I I b 1 is, DE?!IED. SO ORDERED. spec.a! master . \ 1 O : < L 1 I J U I O I Y I I . ? . A , , P ? z > . K i r , l n , n n ' < May 11, 1999 opinion, which is entitled "Work- Product Doctrine," be adopted, pursuant to Rule 53(e)(2) of the Federal Rules of Civil Procedure. It is ORDERED that plaintiffs' motion for sanctions pursuant to Rule 37(a)(4)(A) [1691-31 be, and hereby Adni'r U S . Steel & Carnegie, 17 F.3d 1386, 1423 (1 1 th Cir. 1994) ("[Tlhe Fifth Circuit Cop. 0 West 2003 No Claim to Orig. U.S. Govt. Works Page 22 FNI. The full title of the August 8 report was "Special Report of the Court Monitor on Potential Evidence Regarding the Alleged Suppression by White House and Department of Justice Attorneys of the Written 'Testimony of the Special Trustee Prepared for the Senate Committee on Indian Affairs' July 25, 2002 Hearing Regarding the Department of the Interior's Historical Accounting." The Court will refer to this document as "the Special Report." FN2. The Court is obliged to discuss the basic arguments raised in the sealed briefs of the parties regarding Attachment C in order that it may decide upon their merits. However, the Court will refrain from discussing the content of Attachment C. FN3. As for assertions of the privilege during depositions that were taken before the Court issued this Memorandum Opinion, plaintiffs will have seven days from the date of this Memnrandum .-...-.. Opinion to file with the Special Master-Monitor or Special Master, as appropriate, a copy of the unanswered questions and a detailed statement explaining their need for the answers to these questions. DGJ v c uei~idarib. A re- --+- ..:+L wlur ,,,:,, bvpabz, of both of these documents at the time that they submit them to the Special Master or Special Master-Monitor. FN4. It should be noted that, as the Court has recently stated, within ten (10) days after being served with notice of the filing of a report by one of the special masters in this W 1 1 L I b l l case, &her -_-. ~ ~ l ~ y iiiay, 6eTqe ..A++=." objections thereto upon the other parties. If there are no objections within the ten-day period, the Court may adopt, modify, or reject the report, or adopt, modify, or reject any individual part thereof. See Order dated January 17, 2003 at 1 n. 1. Given the considerable time that had passed since the filinp of the May 12. 1999 report. however, I!!< C our' r i r c l r i to \vaivc t h c tcri-a:!! requireinent for filing objections with respect to that report. FN5. The cases cited by defendants do not contradict this proposition. Rather, these three cases represent a refusal by courts to extend the Fifth Circuit's holding in Garner u. Wolfinburger, 430 F.2d 1093 (5th Cir.1970), :o the work p r d u c t doctrine. set. car li. ~~~ ni.:-.:rc r i a i i i i i i i b _ L _ . . I A SIJUUIU 2003 WL 255970 (Cite as: 2003 WL 255970, "14 (D.D.C.)) has held that the Garner doctrine does not apply to attorney work product. We agree.") (citation omitted); In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir.1982) ("Since the good cause standard is the standard in Garner, it follows that Garner should not apply to work product discovery."); Picard Chem. Inc. Projit Sharing Plan v. Perrigo Co., 951 F.Supp. 679, 687 (W.D.Mich.1996) ("This Court agrees with those courts that hold that the Garxer doc.;ine does no: app!j, to .*o;k product immunity."). In Garner, stockholders of a corporation, who were suing the corporation for acting inimically to their interests, claimed that attorney-client privilege did not apply to communications between the corporation and its attorney. Garner, 430 F.2d at 1097. The corporation disagreed, claiming that the attnrnrv-rlirnt nrivilror ahcnliitrlv nmtrrtrrl r" J r------- -..-...- ~ the communications. Id. The court adopted neither position, holding instead that the communications would be protected by attorney-client privilege unless the stoc*khoiders demonstrated "good cause:' for disclosure. Id. at 1103-04. It is true that the district court had relied on two English cases treating the corporation-shareholder relationship as analogous to the trustee- beneficiary relationship in reaching its decision. Id. at 1102. But the Fifth Circuit made clear that although these cases were Firestone Tire & Rubber Co. v. Hruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1 989). 2003 iiy'i 255970,2003 *Wi 255970 jD.D.C.j END OF DOCUMENT Copr. 8 West 2003 No Claim to Orig. U.S. Govt. 'Woriis Page 23 "persuasive recognition that there are obligations, however characterized, that run from corporation to shareholder and must be given recognition in determining the applicability of the privilege," they were not "binding precedents." Id. More importantly, Washington-Baltimore Newspa-uer Guild v. Washington Star Co.. 543 F.Supp. 906, 909 n. 5 (D.D.C. 1982), which established the existence of the fiduciary exception to the attorney-client privilege in this Circuit, ro:Pl+.4 c."..l:,-;+l., ,,,..:,,,,..+ c*yllrlllJ I L , e r L c " a 'rqLI"c."'eJ.L u. p v u ,c ,.--a cause to "pierce" the privilege in a trust context. The conclusions of the cases cited by defendants thus hinge upon an analysis that has been expressly rejected by this Court. Additionally, the entities involved in these cases were corporations and their shareholders, not trustees and beneficiaries. FN6. EPdSA is the E ~ ~ ! v ~ c c Retiiemeiit Income Security Act of 1974, 29 U.S.C. $5 1 101, ef seq. The Supreme Court has directed federal courts to read ERISA in light of the common law principles governing trusts. See 2003 WL 733992 --- F.R.D. --- H Only the Westlaw citation is currently available. (Cite as: 2003 WL 733992 (D.D.C.)) United States District Court, District of Columbia. Elouise Pepion COBELL, et al., Plaintiffs, V. Gale A. NORTON, Secretary of the Interior, et al., Defendants. NO. CIV.A.96-1285 (RCL). Beneficiaries of Individual Indian Money (IIM) trust accounts brought class action suit alleging that the Secretaries c?f !he !r?!erior a d Treas1Wy breached their fiduciary duties by mismanaging the accounts. On defendants' motion for a protective order regarding documents requested by a special master-monitor appointed in the case, the District Court, Lamberth, J., held that: (1) discovery rule authorizing issuance of protective orders does not apply to document requests by a special master appointed pursuant to rule governing masters; (2) it was improper for defense counsel to refuse to comply with document request made by special master-monitor on the grounds that documents requested were protected under attorney- client privilege; and (3) defendants' filing of frivolous motion for protective order warranted sanction of paying plaintiffs' reasonable expenses, including attorneys' fees, incurred in opposing the motion. Motion denied. West Headnotes Discovery rule authorizing issuance of protective app!' 10 dnc!!!?!?!?. !-eol!e!! h\. I o!-dr!-.. do?? I?"! v special master appointed by the court pursuant to rule governing masters, since such requests do no1 constitute "discovery" within meaning of rules, governing discovery between parties. Fed.Rules, Civ.Proc., Rules 26(c)3, 53(c), 28 U.S.C.A. 121 Federal Civil Procedure -1893.1 170Ak1893.1 It was improper for defense counsel to refuse to Copr. 0 West 2003 No Claim to Orig. US. Govt. Works Page 1 comply with document request made by special master- monitor on the grounds that documents requested were protected under attorney-client privilege; when monitor issued a request for documents pursuant to his aufhority as court monitor, monitor was proceeding as an adjunct of the court, and was therefore entitled to production of the documents requested, any claims of privilege notwithstanding; issue of privilege would oiiby G ~ C O ~ X iekiiaiii if XGTdoi fi5di.ijhed to d i ~ ~ i i ~ ~ content of documents in his reports to the court, or provide them to plaintiffs. Fed.Rules Civ.Proc., Rule 53.28 U.S.C.A. 131 Federal Civil Procedure -1893.1 170Ak1893.1 Special master-monitor possessed the authority to issue directions to the parties and their counsel in response to any objections asserted during depositions at which he presided, where appointment order provided monitor with the authority to "oversee the discovery process in this case ... to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court" and ''to regulate all proceedings in every hearing." Fed.Rules Civ.Proc., Rule 53, 28 U.S.C.A. 141 Federal Civil Procedure 0 1 8 9 3 . 1 170Ak1893.1 &scvv.ery. process in if1iS cBsc Order appointing special master-monitor gave monitor authority to terminate a deposition over which he was presiding, where order provided monitor with the aui'loriv to lloversee ... to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court" and "to regulate all proceedings in every hearicg." Fed.P,u!es Civ.?rcc., Rule 53,28 U.S.C.A. 151 Federal Civil Procedure -1893.1 ' Y O A 1 . 1 f O ~ 1 Special master-monitor possessed the authority to file a report and recommendation with the court recommending that an order to show cause be issued requiring counsel to answer why his or her conduct should not be referred to the disciplinary panel or why his or her conduct does not warrant sanctions, where appointment order gave monitor authority "at any time, [to] call to the Court's attention any matter that bears on the compliance with any order of this Court or any 2003WL733992 (Cite as: 2003 WL 733992 (D.D.C.)) Fed.Rules Civ.Proc., Rule 53, 28 applicable law." U.S.C.A. [6l Federal Civil Procedure -1278 170Akl278 Government defendants' fiiing of frivoious motion for protective order against court-appointed special master in Indian trust litigation, warranted sanction of requiring defense counsel to pay plaintiffs' reasonable expenses, inciuding attorneys' fees, iilciiiied in opposing defendants' motion, especially considering that the motion represented the culmination of a series of displays of obstinacy, recalcitrance, and ..---L.-Ll ullpllllLlpleu A 1, UellOYl", he.,:fiv on the pal.? G f defense ceunse!. Fed.Rules Civ.Proc., Rule 37(a)(4), 28 U.S.C.A. MEMORANDUMAND ORDER LAMBERTH, District Judge. *1 This matter comes before the Court on Interior defendants' motion for a protective order regarding documents requested by the Special Master-Monitor ("Monitor") and regarding the rule announced by the Monitor concerning deposition questioning [ 17471, which was filed on January 23, 2003. Upon consideration of defendants' motion, plaintiffs' opposition thereto, defendants' reply brief, and the applicable law, the Court finds that defendants' motion should be denied. fiii&;iigs," which were to ' ! f defendants' trust reform progress and any other matter [he] deems pertinent to trust reform." Order dated April 16, 2001 at 2. Defendants were ordered to facj!i~a!r a n d a p r i r ; ~ MI KieffeI- m the execution nC hi! duties and responsibilities" and 10 provide him with "access to any Interior offices or employees to gather information necessary or proper to fulfill his duties." Id. On September 17, 2002, the Court found Interior Secretary Gale Norton and Assistant Interior Secretary Neal McCaleb to be in civil contempt for committing several frauds upon the Court. In a memorandum opinion issued that date, the Court ordered a special I. PROCEDURAL BACKGROUND On April 16, 2001, with the consent of both parties, the Court appointed josep'n 3. Kieffer, iii, to serve as court monitor in this action. Mr. Kieffer was directed to "monitor and review all of the Interior defendants' trust reform activities and file written reports of his "2 sur"Tap; ef the Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works Page 2 master to be appointed in the instant case to monitor the status of trust reform. Explaining that there were "no practicai means by which this Court aione can monitor the status of trust reform or the defendants' purportedly vast efforts to bring themselves into compliance with their trust responsibilities," the Court determined &at the appointment of a special master was "clearly necessary to ensure that this Court and the plaintiffs receive timely, accurate information regarding the status of trust reform and the defendants' ,=ff0CLS to &ischarge pioperlj. the* fi&dciqy, &hes." Mem. Op. dated Sept. 17, 2002, at 259, 258. In order to ensure that the parties would understand the nature of the duties bestowed upon the special master- Illc)nitor, ?he ceurt specified h a ? I'[?p!e specia! m2ster- monitor shall also oversee the discovery process and administer document production, except insofar as the issues raised by the parties relate to IT security, records preservation and retention. the Department of the Treasury, or Paragraph 19 documents" and that ''[a111 other future discovery matters shall be withm the purview of the newly appointed special master-monitor unless the Court specifically directs thar they be handled by Special Master Balaran." Id. at 261. The Court entered an order the same date appointing Mr. Kieffer to serve as Special Master-Monitor in this case, pursuant to Rule 53 of the Federal Rules of Civil Procedure. The order declared that "[tlhe Special Master-Monitor shall have and shall exercise the power to regulate all proceedings in every hearing before the master-monitor and to do aii acts and take aii measures necessary or proper for the efficient performance of the master-monitor's duties, as set forth in tlus order." Order dated Sept. 17, 2002, at 3. This language quoted b i r ~ f y the de~ripiioii of the powers giaiited to specid masters appointed pursuant to Rule 53. Additionally, the appointment order provided that *2 [tlhe Special Master-Monitor shall also oversee the discovery process in ?his cage and administer document production--except insofar as the issues raised by the parties relate to IT security, records preservation and retention, the Department of the 1 iezwi-!. an? J3:ii-::pi7k 19 document>--tc~ e n s i ~ ~ - i that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court. The Special Master-Monitor shall file with the Court, with copies to defendants' and plaintiffs' counsel, his report and recommendation as to any discovery dispute that arises which cannot be resolved by the parties. Id. at 3-4. On December 20, 2002, plaintiffs deposed Acting 0 . 2003 WL 733992 Department attorneys had made any IaCtual misrepresentations to the Court during a hearing on December 17. Defense counsel directed Erwin not to answer the question, invoking attomey-client privilege 1 ~ 1 . . .,~. .l-- - ~ ~ - - I . - ~ ~~~~. ,-- -1.. ubibiiiuiiauuii, u ~ i ~ i i z ~ , bwuiiabi u~ub-~bu ~1 w i i i iiwL LW answer the question. Because of the repeated objections of defense counsel, the deposition ended without Erwin providing an answer to the question. the authority of the Special Master-Monitor ;o regulate the depositions, in my opinion, has been to put plaintiffs' counsel at a severe disadvantage due to plaintiffs' counsel's acceptance of the direction the resultant inability of plaintiffs to conduct effective Phase 1.5 trial discovery. Defs.' Mot. for a Protective Order as to Discovery by the Special Master- Monitor and as to the Rule I , ,l n . 1 1 , 1 1 J '. /7 llllUlIIIbU U L l b l l U a l l l a LllLll UUl'LL~ ILIIUIk Ub-yWOIIIWIIJ) I 1 defense counsel refused to comply with instructions issued by the Monitor pursuant to his authority under Rule 53 to regulate all proceedings in every hearing before him the Monitor would consider terminatine his 01 hei conduct should not be ieferied to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action under Rule 8.4(d) of the Ristrict of Columbia Rules of *3 On December 18, 2002, during a deposition Copr. 8 West 2003 No Claim to Orig. US. Govt. Works . , C W I I b J ~ U I I U b I I k ~ O U U ~ j l l , U J U11L provide a further response. Id. The next day, the Monitor issued another written reouest for the documents he had soueht in his Ordei, Ex. b, at 2-3. The Monitor then informed defendants that, based on Edwards's description of the documents in question during his deposition, there was no reason to believe that the documents were protected On January 3, defense counsel responded to the - 3 . - -r-r.lrl--rl-- , ~ - > ..-'--.l. Page 3 "seen a letter rrom [special ~rustee] slonaker that says an historical accounting was not possible. I believe that was May 5 , but I'm not sure." Transcript of Deposition of Bert Edwards, December 18, 2002, at 219. Edwards l-u--~c-~--.. n r . ~ - - * - - U b b U L U l l l l l ~ . I L b . "I1 U b L b A I I U b I LL, L W W L ) L 1 1 b lVlUllll"1 wrote to defense counsel requesting copies of the letter and memorandum "and any other correspondence between Mr. Slonaker and his staff and Mr. Edwards 2nd hi9 ctnff Teoardino the iiidoment arrniints and the that he sought the documents pursuant to his aithority under his appointment order "to monitor the status of trust reform and the Interior defendants' efforts as they relate to the duties declared by the Court and the letter and selected portions of the memorandum that he had requested. Asserting that two attachments of the memorandum "may be privileged," defense counsel stated that defendants would "provide a F 1 r ., . I " I W I I I L U I U L l U " " W U I U 2003WL733992 the extent you have now assumed the authority to investigate the accuracy of Mr. Edwards's deposition testimony, or the adequacy of the judgment accountings, we believe your actions exceed those that 1 1 , 1 3 1 . \ . rl - ' ~ ~ > ~ . . * l . ~ ~ ~ . . ~ ' ~ ~ ~ _ ~ - _ _ _ _ _ I _ - - W""VUU'J ""YO UbbUUDb l l U I LL Lbyubcir 1& inconsistent with your authority and it sought specific documents that were readily accessible. As your subsequent request suggests that you intend to iinrlwtnkt. an inniiirv that mav he imnroner. and to Copr. 0 West 2003 No Claim to Orig. U S . Govt. Works I _ _ _ _ - _ - 1 ._ 1: OL4".J,a*l,l." U L U"yuU'L'u.'Y 'U""6Y compel witnesses, under threat of potential disciplinary action against their counsel, to answer questions over the objections and instruction of their counsel." Mem. in Suaaort of Mot. for Protective Order at 1 . The Court Before the Court may proceed to the merits of defendants' motion, it must first determine a threshold issue: whether Rule 26, which sets forth "general provisions governing discovery" applies to the actions Procedure. Defendants' motion does include a footnote asserting that "[tlhe protections afforded litigants under 11. ANALYSIS A. Defendants' Motion for a Protective Order order which justice requires to protect a party or person fiom annoyance, embarrassment, oppression, or undue burden or expense.'' Defendants seek an order fiom this Court pursuant to Rule 26(c) that "( 1) relieves them of authorized by the court order appointing you. Id. The Monitor made a third request for the documents in inquiry was no longer lirmted to your monitoring trust reform but now included an investigation into Mr. Edwards' credibility, which we maintain is beyond the scope of your powers as Special Master-Monitor." - n->-. 7. T > I I r- T1 _A_.I' T L _ If_-:*-- - * 1 Ub b"ILDL1Ub.u U O L1 IblU.JU1 u g UbLb*LDb U"LUlO"l L U y'wuuv" the documents. Mot. for Protective Order, Ex. J, at 2. In a one-paragraph memorandum sent the same date, defense counsel informed the Monitor: "Whether we will aroduce or not oroduce those documents is still a On Jaiiuary 15, 2003, twenty-ioul days after t h t Monitor's original request, the Monitor issued a fifth written request for the documents. Two days later, defense counsel informed the Monitor that defendants Ex. 0. Defense counsel also claimed that [tlhe Department of Justice has not yet made a final _ _ _ _ _ & I - . _-__-LA U I C I " A W " I I . Page 4 regaralng attorney-client priviiegej. until tnat decision is made, we cannot disclose matters protected by the attorney client privilege because we must avoid taking action that would waive the - -.I:-- U"II""I...I. " On Januarv 23. defendants filed the instant motion. J-1 L-. UllU L U . . ni-:-*:m- L "J F A A . A A - 6 " information. Id. [FN3] _Ll:--L:_- Lll" U a O y u Y A L n . " 2003WL733992 Support of Mot. for Protective Order at 12 n. 7. But this assertion sidesteps the question of whether document requests by a special master constitute "discovery" for the purpose of the Federal Rules. . .- J ~ C ) 01 tiit: rcuciai ~ ~ U I G S UI LIVII riuc.cuuic, WIILII provides that special masters Itmay require the production before the master of evidence upon all matters embraced in the [order ofl reference, including th- n + n A n r t ; n n nf 911 h n n t c nanPrr vniirhPrc . _ --o--- - - -, would certainly be bizarre for the actions of a court- appointed judicial official to be governed by the provisions of the Federal Rules that regulate the actions of parties engaged in discovery. The sheer oddity of the Instead of examining this threshold issue, defendants engage in a screed against the Monitor, culminating in the preposterous allegation that "[rlather than adhere to . . ranramounr LO a iirigaiir iit L I I I ~ L a x . iviciii. 111 ouppuir of Mot. for Protective Order at 13 (emphasis in original). [FN5] To listen to defendants, one would think that the Court had done something revolutionary i- ----&ti-- n cno,-;nl mnatov 4 t h the mnwer tn such authority to be unusual 01 inipioper. See, e.g., I n re Kosmadakes, 444 F.2d 999, 1004 (D.C.Cir.1971) (approving a Rule 53 special master's decision to ignore expenditures of a fiduciary who had failed to F.2d 266 (5th Cir.1982) ("The Special Master shall have unlimited access to the records, files and papers Copr. 0 West 2003 No Claim to Orig. US. Govt. Works 1 . P . . Page 5 of the Special Master's duties of monitoring compliance. Such access shall include all Departmental, institutional, and inmate records, 7 including " . , . ... s but not limited . to medical records. The uuiibn an npbbiai I L ~ J L ~ I , wiuiuub LL WUIU ~ ~ u i i i L I L U ~ L party that such requests were improper or exceeded the scope of his authority. Therefore, the Court finds that the provisions of Rule 26(c) only possess meaning in a AicrnvPrv rnntpvt and mnnifectlv A n nnt annlv tn determine whether any action by the Court is warranted in response to these claims. .I allulllty-blltlll pi1 VllGFjG. nrrnrmtino - *6 [2] In addition to challenging the authority of the Court-ordered authority to oversee and administer the discovery process.'' Mem. in Support of Mot. for Protective Order at 16. However, the only evidence that " " . defendants . - present of this "inherent - " . conflict" is the OHTA's requests to either its legal trust advisory firm or its Legal Advisor are described by Mr. Edwards as requests to review "the historical wnrlr" 2nd "tho rolov17nt loon1 the fiduciary duties of the Secretary--the 1 rustee delegate-to her IIM account holder trust beneficiaries. Because the requests were made to attorneys working for the Secretary and Mr. involving the judgment accounts' "historical accounting." 2003 WL 733992 - 2 _ _ _ _ clearly demonstrated that they were communications; between a trustee and its attorneys concerning the administration of the trust, and pointing out that OCI DeceI???.?er 23, the co"1-t had m!ed that such decuments fell within the fiduciary exception to the attorney-client privilege. Indeed, the propriety of the Monitor's request has, nothing to do with the issue of whether the documents, were privileged because, as explained above, the Monitor is a judicial official whose requests for documents do not constitute "discovery.'' Accordingly, the sole relevance of the privilege issue pertains to whether, after the Monitor had received the documents, it would be appropriate for him to disclose the contents of the documents, either in his reports or to plaintiffs. All that defendants were required to do to preserve her claim of privilege was to tum over the documents to the Monitor accompanied by a cover letter explaining that defendants were asserting attorney-client privilege over the documents. Then, before the Monitor could discuss their contents in his reports, or provide them to plaintiffs, it would be necessary for him to prepare a report and recommendation as to the application of the (Cite as: 2003 WL 733992, *6 (D.D.C.)) Mot. for Protective Order, Ex. F, at 2 (emphasis in original) (footnote omitted). Defendants imply that in making this statement, the Monitor was issuing a ruling on the propriety of her assertion of attorney-client privilege, and thus improperly intertwining his separate roles as discovery master and court monitor. But the: Monitor never stated that he was ruiing on the! propriety of his own request, or making any finding of law as to the propriety of defendants' assertion of attorney-client privilege. Instead, the Monitor simply -c L ~ - >__........A. 2 Li.-L T-J _t uuscl vcu tllill CUWillUb > - I - 5 UcscIlpllull U I LIlc uucuIIIcnt?i Vfi by the couri afier Il?C!Lld!!?f !!?i priv-liege, -wflicfl worrld ' j e considering defendants' comments and objections to the report. apparent that it is defexdants wha are mistaken about the nature of the respective roles of the Monitor. In his capacity as discovery master, the Monitor makes determinations as to the propriety of /7?' lh( /107.17L'\ *? It is the:efc:e dlSCO\'cl-\' I C f l l l f C T ' applicability of asserted privileges. Bur when, acting in his capacity as court monitor, the Monitor requests one of the parties to produce documents related to any of the "matters embraced in the [order ofl reference" to him, the Monitor is not making a discovery request. Therefore, neither the Monitor nor the Court need make any ruling at the time of the Monitor's request concerning any claim of privilege by the party from whom the documents are requested. In other words, when the Monitor issues a request for documents Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works rciln,-h tl-.rmnte ""A orrl.eot;,-...,c I..e .rnn-n intent being to chill the performance of defense counsel's ethical obligation to represent the United States zealously. The choice Mr. Kieffer seeks to fni c i (~O\~CI-JII;?CII: a!!nr!?r\~: I<- !~?akc--a??a~~do! discovery ObjeCtiOllS they are ethically bound to assert on behalf of their clients, or face a recommendation for personal disciplinary action-- is intolerable and has no place in our system of jurisprudence. *8 Mem. in Support of Mot. for Protective Order at 18. In sum there is no conflict between the Monitor's duty to monitor the status of trust reform--which includes he ,oeiieved s'ne was acting in bad further refusals to comply with his requests could result in referrals to this Court for disciplinary action, defense counsel responded that ~ a j u k u L I U ~ L ~ L ~ ) CLUU w b b u i ) a L i u i m a1L wiuii&, tLa LIIG piaiii - 1 ~ . A,. Page 6 pursuant to his authority as court monitor, the Monitor is proceeding as an adjunct of the Court, and is therefore entitled to production of the documents requested, any claims of privilege notwithstanding. The issue of privilege only becomes relevant if the Monitor wishes to discuss the content of the documents in his reports to the Court, or provide them to piaintiffs. in such an instance, if the party from whom the Monitor received the documents has asserted any form of privilege, the Monitor may not discuss the contents of me uucumcnts in 'his reports, or provide them to plaintiffs, unless he first prepares a report and recommendation for the Court regarding the applicability of the privileges asserted, and the Court has detemired that fie dcccElents are not privileged. Thus, it is the Court, not the Monitor, who makes all determinations regarding the assertions of privilege over documents requested by the Monitor in his and fiat J..--~...~.A- capacity as cot1I-t monitor, after considering the comments and objections of the parties to the Monitor's report and recommendation. Therefore, it was improper for defense counsel to refuse to comply with a document request made by the Monitor on the grounds that the documents requested were protected under attorney-client privilege. The proper course of action would have been to comply with the Monitor's request, while simultaneously informing the Monitor that defendants were asserting attorney- client privilege with respect to the requested documents. Instead, defense counsel repeatedly refused to tum over documents requested by the Monitor pursuant to his order of reference, and challenged the authority of the Monitor to make such requests. Moreover, when the Monitor informed defense counsel 2003 WL 733992 - (Cite as: 2003 W L 733992, *8 (D.D.C.)) the authority to request documents that will assist him in the preparation of his reports to the Court--and his authority to "oversee the discovery process in tinis case ... to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court." Defendants have pointed to :- --.L:-l- &I-- m.#..-:*...L :-L* -..* L-LL. :-.-*^I^^- 11u IIIbLalILcb ll1 W l l l L l l LllC lVlUlllLUl b uvclb1gl11 irulllul1Ly over the discovery process has interfered in any way with his monitoring duties. Indeed, it would be surprising if any such conflict were to arise, given the have fact that CGUrtS frequenfy assig:: a xuEIber G f tasks tc special masters in institutional reform cases like to the present case, including both monitoring duties and the authority to oversee discovery. See, e.g., Gary W. v. State ofLouiriana, 601 F.2d 240, 24s (5th Cir-1979) (finding that the special master's duties to monitor implementation of court decree, and serve as fact finder and hearing officer accorded with the authority provided under Rule 53(c)); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84, 11 1-12 (3d Cir. 1979) , rev'd on other grounds, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ("[Tlhe Commonwealth is simply incorrect in asserting that the scope of a master's duties is narrow. As one commentator has properly noted, '(m)asters may be delegated the authority to issue subpoenas, hear grievances, take sworn testimony, and make formal or binding recommendations, including contempt findings, to the court.' In employment discrimination cases, for example, court-appointed administrators, who have the same powers as masters, have made frequent and successhi use of rather wide-ranging powers. Authorized to take all action necessary to implement the decree and to remedy breaches of compliance, these administrators have performed negotiating and G,""t;n"c ;nl,Pct;"ntnn, 1U11bUV11J) UllU I ' I * b ~ L I ~ U , " & J issued recommendations for future implementation.") (internal citations omitted) Nut? Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 560-61 (N.D.Ca1.1987) (appointing special master to monitor defendant's compliance with its court-approved plan for meeting discovery requests and to serve as discovery master). fin all!^. defendantc allepr thai "[ill 1: iinnccrssar).. an? unduly burdensome to the lnterior Defendants, for the Special Master-Monitor to be conducting pretrial discovery into areas that were or could be the subject of discovery by the Plaintiffs, particularly given the magnitude of the document discovery conducted by Plaintiffs to date.'' Mem. in Support of Mot. for Protective Order at 19. This contention is without merit. First, as explained above, the Monitor's document requests do not constitute "pretrial discovery." Second, the Court has scrutinized defense Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works that there is no basis for the issuance nf a prrrtective order under Rule 26(c) against a special master. Nevertheless, the Court will examine defendants' claims in order to determine whether any responsive actinn h \ thc Couit 1' \~wiantec! Defendants claim that the Monitor's "assertion of the authority to immediately resolve substantive discovery disputes as they arise during depositions is contrary to the express directive of the Court, set forth in the Appointment Order, requiring the Special Master- Monitor to submit any such issue to the Court for resolution.'' Mem. in Support of Mot. for Protective Order at 21. Defendants also allege that ''[nlot only does [the Monitor] seek to deprive the Interior 2. The Monitor's Rule Concerning Depositions .-l..L-- auiiiry -h:l:+., +- iu ,,,C-- pciiuiiii l.:" 1113 Page 7 counsel's communications with the Monitor without findmg any claim that the Monitor's requests are unduiy burdensome. instead, prior to fiiing defendants; motion for a protective order, the only complaint by defense counsel about the Monitor's requests was that they were allegedly Improper. Third, defendants are free to request exteiisioiis of tine fiom the Monitor to respond to his document requests, just as defendants are free to request similar extensions from the Court to respond to any of plaintiffs' discovery requests. See Order dated Feb. 6 , 2003 (grantmg defendants' motion for an extension of time to respond to plaintiffs' discovery requests). Defendants have made no showing that the Monitor would refuse to consider an appropriate motion for an extension of time to respnnd to document requests that he has issued. *9 In sum, because the Monitor's document requests do not constitute "discovery," there is no basis for the issuance of a protective order relieving defendants of any obligation to respond to his requests, even if the Court were inclined to issue such an order. Additionally, defendants have failed to present any evidence indicating that the Monitor has failed to keep separate his duties as discovery master and court monitor, made unduly burdensome document requests from defendants, or become a "de facto litigant" in this case. [FN6] Accordingly, the Court will not issue an order that would render the Monitor completely unable to request documents that would assist him in his role as court monitor. After seeking an order circumscribing the Monitor's uuiica zs c ~ i f i ~~ioiiiior, defendants next petition the Court for a protective order limiting the Monitor's authority as discovery master. [FN7] As explained above, the Court has found . 2003WL733992 (Cite as: 2003 W L 733992, *9 (D.D.C.)) Defendants of having substantive disputes that arise during depositions decided by the Court after a fair hearing, he intends to punish counsei for tine interior Defendants for even taking a position that differs with h s own.'' Id. at 22. A-&--:-- l l l C LUU11 111USL UCLCIIIIlIIC WllCLllCl LllC ~ I U ~ U S L L I U I U1C TL- n-..- *yLLy- L'J" --.L-*L-- A- -_--___ I -L-.L- Monitor exceeds the authority vested in him by his order of appointment. The Monitor issued his proposal in a letter dated January 2, 2003: T T l n fiihite &p~si?icns, shcn!d ccufise! r~fi?se tc abide by my direction on discovery disputes that are unquestionably within my authority to resolve as granted to me by the Court in its September 17, 2002 Order, including but not limited to the regulation of deposition questioning, consideration will be given to terminating the deposition and filing a Report and Recommendation to the Court recommending an Order to Show Cause be issued requiring counsel to answer why his or her conduct should not be referred to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action pursuant to Rule 8.4(d) of the District of Columbia Rules of Professional Conduct and why his or her conduct does not warrant personal monetary sanctions pursuant to Federal Rule of Civil Procedure 37(A)(4). *10 Mot. for Protective Order, Ex. T, at 3 (footnote omitted). The Monitor explained that he considered this rule to be necessary because in a recent deposition, defense counsei had "refused io permit the Acting Special Trustee to answer plaintiffs' counsel's questions even following my ruling on the appropriateness of the questions and direction that the witness answer them." !d a? 2. The refusal of defense counsel to permit Acting Special Trustee Donna Erwin to answer questions as to whether her co-counsel had lied to the court during a recent hearing resulted in the filing of a motion to compel this testimony. The Court subsequently determined that in response to the questions put forth b]. plaln~iff:. drfeensc counsel had i-egcatcdl!~ madt frivolous assertions of anoi-ney-client privilege. bee Mem. and Order dated Feb. 7, 2003, at 27. Additionally, the Court found that during the Erwin deposition, defense counsel had repeatedly attempted to restrict the scope of plaintiffs' questioning by asserting, without any factual basis, that the Court had only permitted the deposition to proceed because of its purported assumption that plaintiffs' questions would be limited to inquiry into facts that go to the creation of plaintiffs' plans. Id. Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works tn A n 0 1 1 or+- "..A his order of appointment. -n-;tn,. ".A LW U W ClJl a L L J allU La&= lllUllllUl a1.U Page 8 ;"~Uiiiior's proposai emerges as Therefore, the proposal by the Monitor emerged as a response to what tine Monitor perceived (and the Court has found) to be unscrupulous tactics on the part of defense counsel to obstruct a legitimate inquiry into whether her co- counsel had lied to the Court. Viewed in its an admirable response to a situation that had arisen during a recent deposition, during which defense counsel had interfered with the Monitor's ability to cery act his d??ties as discGverjr Imste:, as set farth in The Court must examine the language of that order to deternine whether the Monitor's proposa! would exceed the authority that the Court has vested in him. Under the terms of his appointment order, the Monitor was given the authority to "oversee the discovery process in this case and administer document production ... to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court." Order dated Sept. 17, 2002 at 4. The Monitor was also ordered to "file with the Court, with copies to defendants' and plaintiffs' counsel, his report and recommendation as to any discovery dispute that arises which cannot be resolved by the parties." Id. Additionally, the Court ordered the Monitor to "periodically file reports with the Court, with copies to defendants' and plaintiffs' counsel, that bring to the Court's attention all discovery disputes encountered in this case ... [and that] apprise the Couri of the status of the Speciai Master- Monitork report and recommendation as to all such disputes." Id. The Monitor was also given the authority ''to regulate all proceedings in every hearing before the master- all JllCaDUIGD +,,La -11 ----..--- necessary or proper for the efficient performance of the master-monitor's duties, as set forth in this order" and "at any time, [to] call to the Court's attention any matter that bears on the romp!ianc. wi?h ally nrder of this Court or any applicable law.'' Id. at 3, 4. *11 [3] The question raised by defendants' motion is hesi anal!8zrd as i cmr: of' dlscreic i s l i e > Thc firs: issue IS whether the ternx of the Monitor's appointment order permit him to regulate deposition questioning. The order provides the Monitor with the authority to "oversee the discovery process in this case ... to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court" and "to regulate all proceedings in every hearing before the master-monitor and to do all acts and take all measures necessary or proper for the efficient performance of the master-monitor's duties." It 2003WL733992 "regulate all proceedings in every hearing" berore him does not include the power to regulate deposition questioning. The Court therefore finds that the Monitor possesses the authority to issue directions to the parties and their coun5ei in response to any objections asserted during the depositions at which he presides. The second issue is the extent to which the Monitor's appoint;rent 3 r d ~ i ~ i t h r i ~ e s him to ieso!ve aiij: dispute about the directions he issues to the parties and their counsel in response to questions propounded during a deposition. On the one hand, the Monitor is authorized to ltregu!ate a!! proceedings in every hearing before the master-monitor and to do all acts and take all measures necessary or proper for the efficient performance of the master-monitor's duties." On the other hand, the Monitor has been ordered to "file with the Court, with copies to defendants' and plaintiffs' counsel, his report and recommendation as to any discovery dispute that arises which cannot be resolved by the parties." In a report and recommendation issued on November 15, 2002, the Monitor acknowledged that the appointment order "does not provide or does not detail what would be considered a discovery dispute and what would not." Report and Recommendation of the Special Master-Monitor on the Extent of the Authority of the Special Master-Monitor to Regulate All Phase 1.5 Trial Discovery Proceedings and the Need for Clarification of the September 17, 2002 Order Appointing the Speciai iviaster-Monitor ("November 15 Report") at 10. The Monitor requested that the Court issue a supplemental order clarifying the above-mentioned language in his appointment order. 1u. TJ U L 11-12. IIowever, SXX~ an d e i irigh: Lie construed as a modification of the appointment order, from which the Court will refrain while the Monitor's appointment order is on appeal to the D.C. Circuit. However, the Court has reason to believe that its decision to refrain from ruling on the extent of the Monitor's authority to resolve discovery disputes will not pro\.c fatal to I ~ F . discover!. pmces: in hi. Iitigarion. As defendants thenxelves concede, not all discovery disputes actually necessitate immediate rulings and in some instances do not require resolution at all. Objections that are initially (and often reflexively) asserted are usually not pursued at all or are mooted by subsequent events. For example, the mere occurrence of an "objection" during a deposition or in responding to a document request, does not, in the first instances, require intervention by the Special Master- Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works ifi 82 cpzeasez&!e . - r--.--- by the court, or to present a motion under Rule 30(d)(4)." [FN8] Of course, as recently demonstrated, the Court will consider the possibility of imposing sanctions in response to an improper instruction by counsel directing a deponent not to answer a question. [4] The third issue is whether the terms of the Monitor's appointment order permits him to terminate a deposition over which he is presiding. It would seem obvious that the power vested in the Monitor to "oversee the discovery process in this case ..,, to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court" and "to regulate all proceedings in every hearing before the master-monitor and to do all acts and take all measures necessary or proper for the efficient perfomnce of the master-monitor's duties" necessarily entails the power to determine when a deposition should be terminated. After all, if under Rule 30(d)(4), parties and deponents are afforded the auihoiitji io cuspend &posiiions in vr&r to move for an order to terminate the deposition upon a showing that an examination is being conducted in bad faith or to annoy, embarrass, or oppress the deponent or party &jeciion is examination with the objection noted by the Monitor unless, pursuant to Rule 30(d)( l), counsel properly instructs the deponent not to answer "when necessary tg nrPcPrVP a nrivilpge, ?c efifcrcr: 8 ! i ~ i t & i ~ f i directed r- -I-- Page 9 with the examnation with the objection noted and deferring the "dispute" for later reflection. The party making the objection or seeking discovery may or may not find it necessary to pursue the obj ecrion. *12 Interior Defs.' Resp. and Objections to November 15 Report at 11. The Court agrees that the ordinary practice during depositions in the instant case when an shoii]b be to proceed && the Ip*pzler, it x x r n - , vV",!b seem unremarkable to bestow a similar authority upon the special master overseeing the deposition. The Court therefore finds that the Monitor possesses the. authority 1c drtr:iniiic \\,hci- i tlrimsitioi: m'ri \~&ic!- !?r i k presiding s110uld be lei-miiated. [5] The final issue is whether the ternls of the Monitor's appointment order permits him to file a report and recommendation with the Court recommending that an order to show cause be issued requiring counsel to answer why his or her conduct should not be referred to the Disciplinary Panel or why his or her conduct does not warrant sanctions under Rule 37. Given the authority of the Monitor "at any 2003WL733992 . . . . . - . . (Cite as: 2003 WL 733992, "12 (D.D.C.)) time, [to] call to the Court's attention any matter that bears on the compliance with any order of this Court or . .. . nas vioiarea any law, inciuaing me reaerai Kuies or Civil Procedure and the District of Columbia Rules of Professional Conduct. [FN9] Taking into account the recent conduct of defense counsel, the Court considers A- -.. A--L. - r ~ - na--:*-- 4- ct- -..- L - ----A --a *13 In sum, the Court finds that each of the individual provisions of the Monitor's proposal, with the exception of resolving disputes concerning directions issued to counsel in resuonse to auestions urovounded counsel in response to any objections asserted during depositions at which he presides. The ordinary practice should be for the examiner to continue with his or her examination, and for the Monitor to note the objection. the examner should proceed to the next question unless counsel decides to permit the witness to answer the previous question. Additionally, during the course of any deposition, if the Monitor believes that counsel .- - - - A . . - ~ r-- -:A-- _--_ -_ &I.- a _-_--- A :- I- IvAy... .... ...- ..*- .... .,. .-..-..- ...- offending person or persons that the Monitor may, in his discretion, terminate the deposition. If the offending person or persons does not cease from the offending heha\ 101 thf Vonitoi 11121 111 h i < d i v ~ c t i o n teimiiiatc offending person or persons to explain why his or her conduct should not be referred to the Disciplinary Panel for review and appropriate action, or why his or her conduct does not warrant sanctions pursuant to Rules 30(d)(3) or 37(a)(4)(A) of the Federal Rules of Civil Procedure. Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works LI. aancnons unaer Kuie LO(C) "1 Page 10 The Court also finds no reason why any portion of [6] In their opposition brief, plaintiffs request that the Court award sanctions under Rule 26(c) of the Federal .I- II >-r-..>. .A. 111 YU't, Ulr C V U L -r A*-- p--L:--- '.A*&"' u I.I111UI, n..i-_ -r P:-.:I n _ _ _ _ > __-_ "lUIl 1" U V l l l V U 111 ..11"1U y'"""."" may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of exuenses incurred in relation to the motion." both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the j./(a)(4), that "[tlhe Supreme Court has stated that a party meets the 'substantially unjustified' standard when there is a 'genuine dispute' or if 'reasonable people could >:rr--i _ _ I _ L ~ - ___-_p-~-.-p--- " G I U.0" V ' . '/", \-,ww,,, Federal Practice and Procedure 5 2288 (2d ed. 1994) ("Making a motion, or opposing a motion, is 'substantially justified' if the motion raised an issue ?hoiii \ihicli iea~onablc nronlr could eenuinrll opponent's position after causing everyone time and money, or, worse, defies an unequivocally clear obligation." Boca Investerings P'ship v. United States, 1998 WL 647214 at *2 (D.D.C.1998), rev'd on other grounds, [314 F.3d 625,] 2003 WL 69563 (D.C.Cir.2003). There is no . (Cite 2003 WL as: 2003 733992 WL 733992, "14 (D.D.C.)) requirement that the court find that counsel acted in bad faith. Alexander v. Interim Legal Sews., Inc., 1997 WL 732432 (D.D.C. 1997) (citing Devaney v. Continental Ins. Co., 989 F.2d 1154, 1162 (1 1 th Cir .I 993)). Mem. and Order dated Feb. 5, 2003 at 22. Therefore., the task for the Court is to deiermine w'netiner reasonable people could genuinely differ as to the. appropriateness of defendants' motion for a protective. order. Defendants have failed to cite any case in which a1 party sought a protective order against a court-. appointed special master. Nor has the Court been able L.111. """'"'"J "1 Y"""""'J "LY'YL') VUY", L V lVCUI" U"J tr\ lnrat- a n i r r i c e ctihite nr rernrrrlirv Dnthnrihr thit even hint at any circumstances under which the filing, of a motion for a protective order against a special, master would be appropriate. It would certainly seem im-pmper to issue such an order? given that the duties, assigned to special masters may sometimes include the: authority to rule on the parties' motions for protective orders, and even to issue such orders. See, e.g., Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1293 (8th Cir. 1997) (referencing motion for protective order that had been denied by the special master); Adriana Int'r' Corp. v. Thoeren, 913 F.2d 1406, 1409 (9th Cir.1990) (same); In re "Agent Orange" Product Liab. Litig., 94 F.R.D. 173, 174 (E.D.N.Y.1982) (appointing special master with the authority to "[rlule on all applications, for any protective orders in this litigation and, in appropriate circumstances, grant requests for modification of, or exceptions to, such protective orders"); In re "Agent Orange" Product Liab. Litig., 961 F.R.D. 582 (E.D.N.Y. 1983) (approving protective order issued by special master precluding, ~ ~ s s e ~ n a ~ ~ v n to the media of ccfiain doc-umenis, produced during discovery). In fact, the notion that a court would issue a protective order against a judicial official is so bizarre that the sole conclusion for a reasen.??!. persox? to reach is tha? a demxind f i r the issuance of such an order is patently frivolous. The Court therefore finds that reasonable people could noi. genuinely differ as to the appropriateness of drfendant! ' mnti 01; *15 Before imposing sanctions, however, the Court must also determine whether other circumstances would render an award of sanctions against defendants unjust. In making this determination, it will be useful to examine the circumstances that led up to the filing of defendants' motion. The correspondence between the Monitor and defense counsel demonstrates that in response to the Monitor's repeated requests for documents to assist him in his monitoring duties, Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works T+ ,,,A,.,+ I.---:..,. ..-..+ +I.:- ..--+L:--l wa3 uiia uiiLLiubai LUIIUULL I G ~ G I I L iiuuuis. IL Y'"J" Page 11 defense counsel repeatedly stonewalled in response to the Monitor's requests and challenged the Monitor's legitimate authority, prior to filing the motion for a protective order. Additionally, during the course of a deposition ordered by this Court, defense counsel repeatedly made baseless assertions of attorney-client priviiege, ignoring h e finding of the Speciai iviaster- Monitor that plaintiffs' questions were appropriate, in an attempt to obstruct plaintiffs' legitimate inquiry into whether her co-counsel had lied to the Court during a 4L-4 1-A uiai IGU the Monitor to propose the rule that defendants have challenged in the motion presently before the Court. In short, the filing of defendants' motion represents the J ? cc!~ic2tiofi of 2 series of d i p l a v c of ebstinacv recalcitrance, and unprincipled behavior on the part of defense counsel. The Court fails to discern any circumstances in relation to the present matter that would make an award of sanctions against defendants and their counsel unjust. In fact, the Court concludes that it would be unjust not to sanction defendants and their counsel for wasting plaintiffs' time and resources by requiring them to respond to a completely frivolous motion. Accordingly, the Court will order sanctions to be imposed. As in its February 5 opinion, the Court will not prevent the United States from reimbursing defense counsel, if it elects to do so. to 111. CONCLUSION As a direct result of defendants' filing of a frivolous motion, the Court and plaintiffs were unnecessarily required to expend time and effort. Defense counsel also wasic(-j the i"vloniioi's ilmc by to his document requests, and refusing to abide by a reasonable rule promulgated by him in response to counsel's obstructionist behavior. Another district cour?, faced with sim?-!ar!y Ilnprincip!ed cmduct by 2x? attorney for the government, imposed sanctions against her, explaining that [i]f the defendants' ability to defend themselves full\ can h r cr~rnpi-om~sec' b! ~o\w-nmen: riusconduct without an appropriate remedy, then the integrity of the judicial process is damaged. The government, acting through one of its representatives, cannot place the defendants at a disadvantage, argue against dismissal, and walk away from the situation immune from accountability. United States v. Horn, 811 F.Supp. 739, 754 (D.N.H.1992), rev'd in part, 29 F.3d 754 (1st (3.1994). This Court fully agrees with the district 4 " . . ,. ,.. I - 2003 WL 733992 tnat aerenaants' motion lor a protective order as to discovery by the Special Master- Monitor and as t o the rule announced by the Special Master-Monitor concerning deposition questioning "16 UKUCKMJ r , T A - I 11 I 4 / - I J Ut;, illlU IlGlGUy 15, U C l Y l C U . 11 Ib ILULllGl i i I-- --A L---L-. 1- n r x r i r n 11 :- C.AI--- ORDERED that, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, defendants and their counsel, Sandra P. SpGGner, P.ssist2nt .&?nrr?ey Gener2! Kober! D. McCallum, Deputy Assistant Attorney General Stuart E. Schiffer, and Justice Department attorneys J. Christopher Kohn and John T. Stemplewicz shall pay to plaintiffs all reasonable expenses: including attorneys' fees, that plaintiffs incurred in opposing defendants' motion for a protective order. It is M h e r ORDERED that within thirty (30) days of the date of this opinion, plaintiffs shall submit to the Court an appropriate filing detailing the amount of reasonable expenses and attorneys' fees incurred in opposing defendants' motion for a protective order. Any response to this filing shall be submitted to the Court within thirty (30) days thereafter. It is further ORDERED that defendants' motion for leave to suppiement their motion ji779-i j be, and hereby is, DENIED as moot. SO ORDERED. FNI. Rule 8.4(d) of the D.C. Rules of Professional Conduct provides that "[ilt is professional misconduct for a lawyer to engage in conduct that seriously interferes with the administration of justice." FN2. Rule 37(a)(4)(A) of the Federal Rules of Civil Procedure rule provides, in relevant party or attorney adbising such conduct 01 both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the ~ _L - - ~ P . _1 - P-_1 .L I substantially justified, or that other circumstances make an award of expenses Labs., Inc. v. du Pont Film Mfg. Corp., 3 F.R.D. 11 (S.D.N.Y.1943) (denying motion to quash subpoena duces tecum issued under Rule 45 to produce records before a hearing master authorized to determine the issue of plaintiffs damages). The distinctions from the instant case barely warrant mentioning, but it will suffice to note that the Monitor is not a hearing master, and has not issued any I I I L dii~i~io~ ii! 01 I I I L J \ ~ I O I ~ I ~ O I . O C I C I ~ S C COUIISC, inserts a footnote tacitly accusing the Court of unethical behavior: "This development is even more troubling in light of the Court's statement, in its January 17, 2003 litigation, i t is certainly ironic that defense counsel would presume to lecture the Court Copr. 0 West 2003 No Claim to Orig. U.S. Govt. Works T A h d D C I#, Fv