<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOIJISE PEPION COBELL, ~	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV0l285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior, et aL,)
		)
	Defendants.	)
DEFENDANTS' REPLY
IN SUPPORT OF MOTION FOR
PROTECTIVE ORDER REGARDING PRIVILEGED DOCUMENTS
REFERENCED IN SEVENTH REPORT OF THE COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants" or "Interior") state the following as their reply to Plaintiffs' Opposition (the
"Opposition" or "Opp.") to Interior Defendants' Motion for Protective Order Regarding
Privileged Documents Referenced in the Seventh Report of the Court Monitor (the "Motion").
Introduction
	Interior Defendants' Memorandum of Points and Authorities In Support ("Memorandum
in Support") of the Motion established that the Privileged Documents are indeed privileged,
Interior has not waived its privileges, and the Court Monitor's inappropriate disclosure of the
Privileged Documents did not waive Interior's privileges. Nor has the privilege been destroyed
by the fact that, as a result of the Court Monitor's wrongful disclosure, the documents found their
way into the court file or even onto the Internet.
	Plaintiffs' Opposition studiously avoids disputing or even citing the weighty body of case
<< COB0000002 >>
law that directly contradicts Plaintiffs' arguments regarding the scope of applicable privileges.
Interior Defendants cited these cases in a brief already on file when Plaintiffs filed their
Opposition. Moreover, Plaintiffs' Opposition provides yet another instance in which they
substitute hyperbole and ad hominem attacks on government officials and lawyers, in place of
legal authorities and arguments.
	Plaintiffs stray again from the issues at hand and discuss other allegations having nothing
to do with the Motion. To avoid burdening the Court, we will respond only to the issues relevant
to the Motion.'
Ar2ument
I.	The Attorney-Client and Work Product
Privile?es Are Not as Limited as Plaintiffs Suggest
A.	The Attorney-Client and Work Product
Privileges Apply to a Trustee in Litigation
	Plaintiffs' Opposition (at page 6-9) incorrectly describes the scope of the attorney-client
and work product privileges. Plaintiffs erroneously imply that any services provided by Interior
	'But we offer just one example of Plaintiffs' misstatements. Plaintiffs' Opposition at
page 5 n. 10, trumpets the allegation that Interior Defendants' counsel used the word "contemnor"
during the recent contempt trial. Plaintiffs argue that this shows that the Court Monitor was
justified in using that word too. Their argument is deceptive. They cite the contempt trial
Transcript, page 2566, lines 19-22. But in that excerpt, Defendants' counsel merely referred, in
the abstract, to "the party named as the contemnor." (Emphasis added.)
	Defendants' attorney was merely describing an element of proof regarding persons
"named as" contemnors in general, and was not referring to any person in particular. Moreover,
his use of the modifier "named as" makes all the difference in the world, and is vastly different
from the Court Monitor's use of the word "contemnors" to refer to individuals who have not been
found to be in contempt or otherwise to have committed wrongdoing. Plaintiffs' effort to equate
such different usages of the term is highly misleading. As far as we have been able to determine,
in the other instances in which defense counsel used the term "contemnor," they also included
modifiers such as "putative" or "alleged."
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Defendants' attorneys in this case must relate to trust "administration," so no privileges could
apply vis-a-vis the trust beneficiaries. See Opp. at 6-7. Plaintiffs also incorrectly argue that,
merely because some Interior lawyers (mg., in the Solicitor's office) or officials have
responsibilities regarding both trust administration and the handling of this litigation, they are
afforded no privileges with regard to this case. See Opp. at 3 n.6 and at 7 n.13.
	Plaintiffs ignore relevant parts of the Special Master's opinion and pertinent contrary case
law. Interior Defendants discussed the applicable principles and authorities at length in
Defendants' Reply in Support of Motion to File Under Seal ("Reply Regarding Motion to Seal"),
filed June 11, 2002, at pages 2~10.2 Plaintiffs, who were served with that brief on June 11, 2002,
were thus informed of this case law but chose not to respond in their June 14th Opposition.
	First, even if the Special Master's May 11, 1999 opinion ("5/11/99 Special Master's
Opinion" or "5/11/99 SM Opp.") controls,3 it supports Interior's position. Plaintiffs Opposition
(at page 3 n.6) erroneously cites the 5/11/99 Special Master's Opinion (at 10-Il) for the
proposition that no privilege applies to "litigation infonriation communicated by defendants to
counsel who advise the defendant trustee-delegates on both trust reform and litigation." The
	2 For the convenience of the Court, we will repeat some of the arguments stated in
Defendants' Reply Regarding Motion to Seal, but a fuller discussion of the privilege issues
appears in that brief at pages 2-10.
	' Plaintiffs argue (Opp. at 9) that the Special Master's opinion of May 11, 1999 must
control on the question of privilege. But, first, as shown below, the Court has not yet adopted the
Special Master's opinion, so the scope of these privileges has not been finally decided by the
Court. Second, Plaintiffs' citation to the doctrine of "law of the case" is incorrect. "Interlocutory
orders are not subject to the law of the case doctrine and may always be reconsidered prior to
final judgment." Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997).
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5/11/99 Special Master's Opinion says no such thing.4
	On the contrary, the Special Master recognized that whether a particular communication
is privileged depends upon its subject matter, and communications are not necessarily non-
privileged because they merely relate to the trust. The Special Master noted that the cases he
relied upon, which arose in the context of employee benefit plans, "uniformly hold that certain
'plan design' decisions concerning the formation, amendment or termination of the trust are non-
fiduciary functions reserved to the 'Employer' or 'Settlor,' which are outside the fiduciary
functions of the trustee and therefore, legal advice pertaining to these non-fiduciary functions is
protected b~ the Employer's attorney-client vrivileae." 5/11/99 SM Op. at 10 (emphasis added).
Thus, the Special Master's opinion is directly contrary to Plaintiffs' argument that a fiduciary can
have no confidential communications with its counsel. It is only communications pertaining to
"fiduciary activity of trust administration" that are for the benefit of trust beneficiaries and thus
cannot be shielded from them. However, the Privileged Documents do not fall in that category.
Consequently, the privilege exists.
	Further, the Special Master expressly opined that "work product protection.. . will be
afforded" to documents that "were prepared and created solely for use by counsel in anticipation
or in the course of this litigation." 5/11/99 SM Op. at 13. That statement also is contrary to
Plaintiffs' argument.
	As indicated in the Defendants' Reply Regarding Motion to Seal, statements by the Court
at the recent contempt trial indicated that, at that time, the Court had not decided whether to
	~ Indeed, even Plaintiffs' attorney conceded on the record that a trustee m litigation still
enjoys an attorney-client privilege. See note 5 below.
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adopt the Special Master's opinion, although the Court appeared to recognize that the privileges
apply with regard to materials prepared to assist Interior in the defense of this case, as distinct
from administration of the trust, and even Plaintiffs' attorney seemed to concede as much.5
	Second, Plaintiffs ignore the weighty body of case law that runs counter to their
argument. Plaintiffs once again tout Washinaton Baltimore Newspaper Guild. Local 35 v.
Washinaton Star Co., 543 F. Supp. 906 (D.D.C. 1982), as though it does away with all privileges
whenever a fiduciary and beneficiary have a dispute. Plaintiffs vastly overstate the impact of the
case. The case, which, as a district court opinion, is not binding on this Court, is largely
distinguishable on the crucial point that it did not involve allegedly privileged communications
that took place during ongoing litigation between a trustee and beneficiaries.
	Most cases hold that the fiduciary-beneficiary exception to the attorney-client privilege
does not apply to work product materials and does not apply to attorney-client communications
involved in the fiduciary's defense of itself in a lawsuit. See Defendants' Reply Regarding
Motion to Seal (at pages 5-8), and cases cited therein, such as Koenig v. International Systems
and Controls Corp. Securities Litigation (In re International Systems and Controls Corp.
Securities Litigation), 693 F.2d 1235, 1239 (5th Cir. 1982) (the fiduciary-beneficiary exception
to the attorney-client privilege was not intended to apply to the work product doctrine, nor is it
reasonable to apply the exception where the fiduciary and beneficiary anticipate litigation against
each other); Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1423 (the
fiduciary-beneficiary exception to the attorney-client privilege "does not apply to attorney work
	~ See Defendants' Reply Regarding Motion to Seal at 4-5 nn. I & 2, quoting Transcript of
proceedings, January 4, 2002, at 1609:9-16; February 11, 2002 at 4256:18-25; 4257:1-20.
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product"), modified in part, on other grounds, 30 F.3d 1347 (11th Cir. 1994); Strou~o v. Bea
Assocs., 199 F.R.D. 515, 524 (S.D.N.Y. 2001) (the fiduciary-beneficiary exception to the
attorney-client privilege "does not permit disclosure of communications regarding the defense of
a lawsuit").6
	As stated in United States v. Mett, 178 F.3d 1058, 1063 (9th Cir. 1999), "it is clear that
the fiduciary exception has its limits — by agreeing to serve as a fiduciary, [a trustee] is not
completely debilitated from enjoying a confidential attorney-client relationship." Further, the
court observed:
where a fiduciary seeks legal advice for her own protection, the
core purposes of the attorney-client privilege are seriously
implicated and should trump the beneficiaries' general right to
inspect documents relating to plan administration.. . . [W]here
attorney-client privilege is concerned, hard cases should be
resolved in favor of the privilege, not in favor of disclosure. As the
Supreme Court has repeatedly cautioned, "[a]n uncertain privilege,
or one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all."
Id. at 1065 (quoting Upiohn Co. v. United States, 449 U.S. 383, 393 (1981)). Thus, the court
held that the fiduciary exception did not overcome the attorney-client privilege as to
communications to employee-benefit plan trustees regarding their exposure to liability. 178 F.3d
at 1064.
	6 As discussed in Defendants' Reply Regarding Motion to Seal (at page 6 n.3), the few
cases that state that the fiduciary exception applies to work product materials are distinguishable
and unpersuasive. For example, Wessel v. Albuquerque, No. Misc. 00-00543 ESH/AK, 2000
WL 1803818, at *5 (D.D.C. Nov. 30, 2000), did not mention or analyze the many cases holding
that the fiduciary exception does not apply to work product, and the documents involved in that
case do not appear to have been actual work product materials because they did not pertain to
litigation. Moreover, Wessel still declined to apply the fiduciary exception where the fiduciary
"retains counsel in order to defend herself against the [plan] beneficiaries." 2000 WL 1803818 at
*7
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	The fact that some lawyers ~ in the Solicitor's office) sometimes assist the Interior
Defendants with matters involving trust administration, and in other instances assist with
litigation matters, does not defeat the attorney-client privilege. Well-reasoned case law holds
that the attorney-client privilege is not undone simply because the same lawyers represent an
organization in its role as a fiduciary and in its role as a non-fiduciary. See Becher v. Lone Island
Li~htin2 Co. (In re Lon2 Island Li~htin~ Co.), 129 F.3d 268, 272 (2d Cir. 1997), cited by
Plaintiffs; In re Int'l Sys. and Controls Corp. Sec. Litig., 693 F.2d at 1239 ("It is not reasonable to
indulge in the fiction that counsel, hired by management, is also constructively hired by the same
party counsel is expected to defend against").
B.	The Privileges Apply to the Entirety of the Privileged Documents
	Plaintiffs (Opp. at 7 & 8 n.14) offer their unsupported and fanciful speculations that it is
"highly unlikely" that all of the contents of the Privileged Documents really are privileged and it
is ~ ore likely" that only a few lines should be redacted. First, common sense and experience
teach just the opposite: Clients and their litigation attorneys frequently have discussions or send
letters only about the litigation.7 Second, case law recognizes that confidential client
communications oflen are so inseparably a part of the communications between the client and the
attorney that disclosure of any part of those communications may inadvertently disclose, "either
directly or by implication,. . . information which the client previously provided to the attorney's
trust." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)
	~ Plaintiffs argument could result in unintended consequences for them that they may not
like. If their rule were accepted, then Plaintiffs' communications with their counsel also would
be subject to being produced generally, with only "a few lines" of privileged information
redacted.
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(discussing why the attorney-client privilege is extended to communications from the attorney to
the client); see also RTC v. Diamond, 773 F. Supp. 597, 601-02 (S.D.N.Y. 19~1) (privilege
afforded to "attorney-client communications that appear to be so inextricably intertwined with
the rest of the text that they cannot be separated"), which Plaintiffs cite.
	Third, if the Court chooses to examine the Privileged Documents (which are attached to
the Court Monitor's Seventh Report) on this point, their text reveals that they pertain to the
litigation and not trust administration.
	Plaintiffs' Opposition (at 7 n.13, 8) cites a number cases for the proposition that
privileged information should be redacted and the remainder of the documents produced. Those
cases are inapposite. First, some of Plaintiffs' cited eases did not even involve the attorney-client
privilege. ~ Merchants Bank v. Vescio, 205 B.R. 37, 42 (D. Vt. 1997) (redaction of personal,
"sensitive" information from bank documents that were not covered by a "bank examination"
privilege); Hopkins v. Dep't of 1{UD, 929 F.2d 81, 89 (2d Cir. 1991) (involved the deliberative
process privilege; only deliberative material should be redacted and the factual information
produced). Neither case involved the attorney-client privilege nor that privilege's principle that
disclosure of any of the communications between attorney and client may inadvertently reveal
confidential client information. Moreover, in RTC v. Diamond, 773 F. Supp. 597, 601 (S.D.N.Y.
1991), the court recognized that many documents cannot simply be produced with confidential
information redacted because the confidential parts are so intertwined with the rest of the
document.
	Other of Plaintiffs' cited cases (Opp. at 8) involved reports or memoranda by and between
personnel involved in business transactions, not letters or memoranda between attorney and
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client. See RTC v. Diamond, 773 F. Supp. at 60 1-02 (documents to be redacted were, ~
documents addressed to RTC attorneys in their roles as policymakers for the agency, not as
attorneys); RTC v. Bright, 157 F.R.D. 397, 401 (ND. Tex. 1994) (court ordered redaction of
privileged information from officers' reports or memoranda regarding RTC's sale of assets, that
merely mentioned attorney-client privileged information in some sections).
	Finally, Bo2osian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir. 1984), involved the
question of whether documents provided by an attorney to his expert witness had to be produced
in discovery. The court ruled that the facts within those documents must be disclosed, but the
privileged information could be redacted, under the familiar principle that an opposing litigant is
entitled to find out the facts upon which the other side's expert based his opinion. That principle
is not involved here.
	Plaintiffs have cited no case in which a court ordered production of any part of the types
of documents involved here (j~, letters from litigation attorneys to the client regarding document
production in the litigation, or memoranda from the client's officials to agency counsel regarding
document production).
III.	The Privileges Have Not Been Waived
A. Disclosure to the Court Monitor Did Not Waive PriviIe~es
Plaintiffs fail to overcome Interior's showing (Memorandum in Support at 7-12) that
disclosure of the Privileged Documents to the Court Monitor did not waive the attorney-client
privilege or the work product protection. Plaintiffs (Opp. at 9) struggle over who might have
given the documents to the Court Monitor. But it does not matter. As shown in Interior
Defendants' Memorandum in Support (at 7-I 0), for purposes of analyzing privileges, the
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production by Interior (regardless of which official within Interior) to the Court Monitor should
be deemed the sort of "court-compelled disclosure" that does not waive privileges.
	Plaintiffs Opposition (at 10) refers to a number of cases discussed in section vm of their
December 17, 2001 brief (filed in the recent contempt trial).8 Those cases, however, are
inapposite. Virtually all of those cases involved a party's disclosure of documents to the SEC or
other investigative agency of the Executive Branch, not a judicial officer. See, ~ Permian
Corp. v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981) (disclosure to SEC); In re Sealed
Case, 877 F.2d 976, 980 (D.C. Cir. 1989) (disclosure to Defense Contract Audit Agency auditor);
In re Worlds of Wonder Sec. Lit., 147 F.R.D. 208,211 (N.D. Cal. 1992) (disclosure to SEC); In
re Subpoean Duces Tecum to Fulbrinht & Jaworski, 99 F.R.D. 582, 585 (D.D.C. 1983)
(disclosure to SEC); see also Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279 (t~.C. Cir. 1997)
(party did not timely assert privileges in FCC proceeding).
	The fundamental basis for those decisions was that the agency in those instances
functioned as an opposing party, and disclosure to an opposing party waives certain privileges.
But, as discussed in Defendants' Memorandum in Support (at 12), the Court Monitor does not
hold the status of an opposing litigant. On the contrary, he is a court-appointed official who is
not supposed to be the opponent of either side to this case. Therefore, production to him should
	S Plaintiffs observe (Opp. at 10 n.17) that, during the recent contempt trial, they argued
that disclosure to the Court Monitor waived privileges. But Plaintiffs' argument of an invalid
legal point does not transform it into the law nor does it require that the parties treat it as such.
Defendants opposed Plaintiffs' argument (~ Defendants' "Response to Plaintiffs' 'Brief on Why
the Court Monitor Reports as a Whole and Virtually All Evidence Contained Therein Are
Admissible [etc.],"' filed December 19, 2001, at 11-12). Regardless of what Plaintiffs hoped or
argued, the Court Monitor was obliged to treat confidential materials as such unless and until the
Court overruled privilege claims.
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be treated, for privilege purposes, as production to the Court in camera.
	Plaintiffs observe that, in Fulbri~ht & Jaworski, 99 F.R.D. at 585, the party voluntarily
disclosed information to the SEC. not because it was compelled to do so, but rather, in order to
persuade the agency that there was no need for further investigation. But that point misses the
mark here, for the key issue remains whether the recipient of the information is an opponent, not
whether the submitter of the information hopes to prove a point in its favor. See In re Perrigo
Co 128 F.3d 430, 441 (6th Cir. 1997) (submission to court of counsel's investigative report did
not waive privileges, where the report was submitted to demonstrate compliance with state
statute allowing dismissal of shareholders' derivative actions if disinterested directors perform an
investigation and determine that a derivative suit is not in the corporation's interest).
	Plaintiffs argue that Defendants consented to the order appointing the Court Monitor.
Even if that were so,9 that is a far cry from consenting to his public disclosure of privileged
documents.
	Plaintiffs erroneously argue that, because the Secretary instructed Interior staff to
cooperate and provide the Court Monitor with access to documents, production of documents to
him cannot be considered "court-compelled." Plaintiffs overlook the fact that the Court ordered
that the Court Monitor be provided "access.. . to gather information." See Order dated April 16,
2001. If Interior chose to interpret that direction "broadly" (~ memorandum dated April 24,
2001, from the Secretary), and thus allow the Court Monitor to see even some privileged
documents, that does not change the fact that Interior did so in order to comply with what it
	In fact, Interior Defendants did not consent to the recent reappointment of the Court
Monitor under the conditions that the Court adopted. ~ Order dated April 15, 2002.
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interpreted to be the Court's direction. That the Court did not enter an order specifically referring
to the Privileged Documents does not change that analysis.
	Indeed, Plaintiffs' cited case law demonstrates that the concept of "court-compelled"
disclosure is to be construed liberally. Plaintiffs' Opposition (at 11 n.20) cites In re Sealed Case,
877 F.2d at 980, for the proposition that "short of court-compelled disclosure, [citation omitted],
or other equally extraordinary circumstances, we will not distinguish between various degrees of
'voluntariness' in waivers of the attorney-client privilege." But the court made that comment in
response to the argument that the party's accidental disclosure should not be deemed "voluntary."
Id. at 980. That issue is not present. Moreover, the case citation that Plaintiffs omitted from
their quotation of In re Sealed Case is Transamerica Computer Co. v. Int'l Bus. Machines Corn.,
573 F.2d 646, 650-51 (9th Cir. 1978), in which the court held that, where a court ordered
expedited production of documents, a party's inadvertent production of privileged materials
(resulting from the expedited pace) to an opponent was effectively "compelled" by the court, so
no waiver occurred. Thus, the courts construe the notion of "court-compelled" disclosure in a
flexible and liberal fashion.
	The unusual circumstances of this case should fit comfortably within the doctrine of
"court-compelled" disclosure or the "equally extraordinary circumstances" to which the In re
Sealed Case and Transamerica opinions referred. The production of the Privileged Documents to
the Court Monitor was at least as "court-compelled" as was the production to an opposing litigant
in Transamerica. This Court ordered that the Court Monitor be provided "with access to any
Interior offices or employees to gather information necessary or proper to fulfill his duties." See
Order dated April 16, 2001 at 2. That order was the genesis for Interior's giving access and
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production of documents to the Court Monitor. The circumstances are unique and sufficiently
extraordinary to justify the quite reasonable request that production of documents to the Court
Monitor not waive privileges. Interior Defendants should not be penalized for their efforts to
satisfy the direction to provide "access." Mere recognition of basic privileges is not too much to
ask.
	Moreover, even if Interior's production to the Court Monitor waived the attorney-client
privilege, Plaintiffs fail to overcome Interior Defendants' showing that this did not ~vaive the
work product doctrine, which is held by the Department of Justice attorneys.'0 Even Plaintiffs'
cited case of Permian Corp., 665 F.2d at 1222, held that, although disclosure to the SEC waived
the attorney-client privilege, it did not waive work product protection. The same result would
obtain here, even if the attorney-client privilege were found to be waived.
	Plaintiffs (Opp. at 10 n. 16) try unsuccessfully to distinguish Securities and Exchange
Comm'n v. Lavin, 111 F.3d 921 (D.C. Cir. 1997). First, contrary to Plaintiffs' characterization of
the case, Lavin involved assertion of privilege claims after the documents were produced." 111
F.3d at 924. Second, Plaintiffs fail to distinguish or overcome the central point of Lavin:
	10 Plaintiffs cite Wichita Land & Cattle Co. v. American Federal Bank, 148 F.R.D. 456
(D.D.C. 1992), but that case inv9lved waiver of work product protection by producing
documents to opposing counsel. As indicated above, production to the Court Monitor is quite
different from production to an opposing litigant. In Fulbri2ht & Jaworski, 738 F.2d at 1371, the
court held that disclosures that are "not inconsistent with maintaining secrecy against opponents,
should be allowed without waiver of the [work product] privilege." (quoting United States v.
American Tel. & Telegraph, 642 F.2d 1285 (D.C. Cir. 1980)).
	"In Lavin, the employer produced the tapes containing privileged materials "to the
Federal Reserve Bank of New York in response to a request made pursuant to the Federal
Reserve [BankI's examination powers." 111 F.3d at 924. After that production, Lavin's attorney
asserted the privilege. The court held that the production to the Federal Reserve Bank did not
waive that later-asserted privilege. 14 at 932.
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Production of privileged materials to a non-party with authority to examine or monitor should not
be deemed a waiver of the privileges. Id. at 932. In Lavin, the non-party was the Federal
Reserve Bank (j4~ at 924); in the present case, it is the Court Monitor. But the outcome of the
privilege determination should be the same.'2
B.	Disclosure by the Court Monitor and Resulting Disclosures
(on the Internet or Otherwise~ Do Not Waive the Privileges
	Plaintiffs make much of the fact that, as a result of the Court Monitor's inappropriate
filing of the Privileged Documents, they now appear in the court file and on Internet sites (one of
which is Plaintiffs' site, www.indiantrust.com). Interior's Supporting Memorandum (at 13)
disposed of Plaintiffs' argument that unauthorized publication by third parties waives privileges,
and Plaintiffs have failed to refute that showing or to distinguish Nat'l Wildlife Fed'n v. EPA,
286 F2d 554, 575-76 (D.C. Cii. 2002) (EPA's disclosure of confidential industry data without
permission did not waive the industry's privilege).
	Further, in United States v. Hubbard, 650 F.2d 293, 424 n.99 (DC. Cir. 1980), the circuit
court held that the district court's erroneous unsealing of confidential documents — and thus their
public availability while the case was on appeal — should not even be considered in deciding
whether to reverse the district court's decision to unseal them. The court stated, "[t]o permit this
mode of access to factor into a subsequent evaluation of the interest at stake would only
compound the errors we perceive in the court's original orders." Id.
	Thus, the fact that the Court Monitor wrongfully made the Privileged Documents
	12 The fact that Lavin involved the marital communications privilege makes no difference,
for the attorney-client privilege is at least as important a privilege. See Coastal States Gas Corp.
v.	Dep't of Energy. 617 F.2d at 862 (discussing importance of the attorney-client privilege).
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<< COB0000015 >>
viewable by the public by filing them with the court does riot waive or destroy applicable
privileges. ~or does any resulting further disclosure overcome the privileges. The court in Lavin
recognized that, "[i]n light of the modem regulatory age and technological advances...
involuntary disclosures by third parties" should not destroy privileges "as long as the holder has
acted reasonably in attempting to protect [the privileges]." Lavin, 111 F.3d at 930.
	Thus, Plaintiffs prove nothing by pointing to the fact that the court file is available to the
public (on paper or on the Internet) or that Plaintiffs have sought to take advantage of the
situation by placing the Court Monitor's Seventh Report (which includes the Privileged
Documents) on their website. Interior Defendants have acted reasonably to protect the privileges
they assert. They promptly filed objections once the Court Monitor publicly disclosed the
Privileged Documents, they sought to file under seal the portion of their objections that discussed
the contents of those documents, and they moved for a protective order for the return of the
documents. While Plaintiffs chastise Interior Defendants for "alacrity and urgency" (Opp. at 1
n.1) in filing those papers, they no doubt would have complained more if Interior had not moved
quickly and forcefully to protect the privileges.
III.	The Rules of Evidence Regarding Hearsay and
Authentication Do Not Apply to Determinations of Privilege
	Plaintiffs (Opp. at 11-15) complain that the Declaration of Larry Jensen contains hearsay
or lacks foundation. But Plaintiffs overlook the black-letter principle of law that the rules of
evidence regarding hearsay and foundation do not apply to the Court's determination of the
existence of a privilege. Fed. R. Evid. 104(a) provides that, "[i]n making its determination of the
existence of a privilege, [the court] is not bound by the rules of evidence except those with
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<< COB0000016 >>
respect to privileges." Case law consistently interprets this rule to mean that "the judge can rely
on inadmissible evidence in making his determination" as to the applicability of the attorney-
client privilege. 24 Wright and Graham, Federal Practice and Procedure § 5507 at 569 (1986);
see also Burton v. R.J. Reynolds Tobacco Co., 167 FR.D. 134, 142 (D. Kan. 1996) ("the court
rejects the hearsay and authenticity arguments [objectionsi because under Federal Rule of
Evidence 104(a), it is not bound by the rules of evidence on those subjects in determining the
existence of a privilege. . ."); United States v. Campbell, 73 F.3d 44, 48 (5th Cir. 1996) (under
Rule 194(a), the court allowed admission of a letler to prove whether a privilege applied, even
though the letter was hearsay).'3
	Therefore, even if some statements within the Jensen Declaration are hearsay or do not
have the foundation that would be required to prove facts in other contexts, those statements still
are properly considered in determining whether the privileges apply. The Jensen Declaration
contains sufficient information to establish applicability of the attorney-client and work product
privileges. The declaration establishes that Jensen conducted the appropriate inquiry and learned
that the Privileged Documents were treated as just that — privileged documents. Plaintiffs have
pointed to no legally cognizable defect in the Jensen Declaration or in Interior's showing that the
attorney-client and work product privileges apply.
	IV.	Plaintiffs Fail to Meet Their Burden of
		Showing Any Excention to the Privileges
Plaintiffs casually suggest that "evidence of misconduct" is not privileged. Opp. at 3 n.6.
	'~ The cases cited by Plaintiffs (Opp. at 11-12), involved hearsay objections to
admissibility of evidence at trial or otherwise on the merits of the case, and had nothing to do
with admissibility of statements to prove the existence of a privilege.
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<< COB0000017 >>
But, as discussed at length in Defendants' Reply Regarding Motion to Seal (at 10-13), if Plaintiffs
seek to overcome privileges based upon alleged misconduct, they face a heavy burden which they
utterly fail to meet. Mere conclusory allegations are not enough. ~
Conclusion
	For the foregoing reasons, Interior Defendants request that the Court grant the Motion and
enter the protective order requested.
Respectfully submitted,
ROBERT D. McCALLUM
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOLIN
Director
SANDRA P. SPOONER
Deputy Director
JOHN T. STEMPLEWICZ
n rTri lAttome
Commercial Litigation Branch
Civil Division
United States Department of Justice
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
Dated:	June 26, 2002
-17-
<< COB0000018 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on June 26, 2002 I served the foregoing Defendants 'Reply
in Support of Motion for Protective Order Regarding Privileged Documents Referenced in
Seventh Report of the Court Monitor, by facsimile in accordance with their wntten request of
October 31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
By U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
By Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Courtesy Copy by U.S. Mail:
Joseph S. Kieffer, 1111
Court Monitor
420 - 7~" Street, N.W.
Apartment 705
Washington, D.C. 20004
Kevin P. Kingston