- 
I 
UNITED STATES COURT@APPMLS 
AUG 1 2 2003 
,ELOUISE PEPION COBELL, et d l . , 
Appellees, ',, J 
V. 
Appellants 
> , 
GALE A. NORTON, as Secretary of 
t h e Interior, et al, 
appeals. 
1. These appeals arise o u t of a claim for an accounting of 
individual Indian money (IIM) accounts. The Court recently 
issued a decision in a related appeal arising out of the same 
case. See Cobell v. Norton, - F.3d , 2003 WL 21673009 (D.C. 
BACKGROUND 
FEDERAL GOVERNMENT'S MOTION FOR 
VOLUNTARY DISMISSAL OF CONSOLIDATED APPEALS 
NDS. 03-5063 & 03-5097, the governmenr has appealed from 
-hat reject assertions of the atrorney-client and work 
product privileges and establish a framework for filture 
invocations of the privileges in this litigation, on the basis of 
what the district court understood to be a l'fiduciary exception" 
t3 the privileges. The government's opening brief is due 
September 9, 2003. Oral argument is scheduled for January 12, 
2004, before Circuit Judges Xdwards, Sentelle, and Tatel. For 
the following reasons, the Government now moves to dismiss its 
Cir. July i8, 2C03). 
STATES COURT OF A?PEA 
DISTRICT OF COLUMBIA CIRCU, 
) 
) 
) 
1 
) 
) 
1 
) 
1 
) 
) 
NO. 03-50 
[consolidated with 
No. 0 3 - 5 0 8 4 and 
No. 03-50971 The district court has allowed discovery into a broad range 
of issues. Discovery has been propounded, no= only by 
plaintiffs, but also by the former "Court Monitor," Joseph S. 
KieEfer 111, who was reappointed in April 2002 over the 
government's objection, see i d . at *l. 
As this Court explained, " t h e Monitor's portfolio was truly 
extraordinary; instead of resolving disputes brought to him by 
the parties, he became something like a party himself. The 
Monitor was charged with ar, investigative, q-asi-investigatorial, 
quasi-prosecutorial role that is unknown to o m adversarial legal 
system." Id. at *I?. Moreover, by eievari3g Mr. Kieffer to the 
simultaneous role of Special Master, see id. at 13, the district 
court gave Mz. Kieffer additional broad powers to resolve 
Order of discovery disputes and to recommend sanctions. 
March 5, 2003, 212 F.R.D. 48, 5 7 - 6 3 (D.D.C. 2003). 
2 . In connection w l ~ h t h e discovery reqime it had 
established, the district court articulated a framework intended 
to govern the Department cf Interi,ar's invocations of the 
attorney-client and work prodiict privilepes. In a ruling issued 
on December 23, 2002, the district court rejected a claim of 
privilege with regard to questions posed to James E. Cason, the 
Associate Deputy Secretary of Interior, regarding his 
conmunications with government counsel. 212 F.R.D. 24 
(D.D.C. 2C02). The court held that otherwise privileged 
- 2 - attorney-client communications made in the course of this 
litigation are discoverable under a "fiduciary exception" if they 
relate to "trusL administration." Id. at 31. The court further 
held t h a t the government cannot invoke the attorney-client 
privilege f o r "1 itigat ion-related communications" with counsel 
urless it can demonstrate that the communications were made 
"solelv to prozect [the trustee] personally or the government 
from civil or criminal liability[.]" Id. at 30 (emphasis in 
original:. The court added that, even where the attorney-client 
privilege is properly invoked, the assertion of privilege "may 
result in the drawing of an inference that the undisclosed 
communications were adverse to the beneficiaries' interests." 
a at 30 n.6. 
On February 5, 2003, the court exLended the same reasoning 
to invocations of the work prochct privilege. See Cobeii v. 
Norton, 213 F.R.E. 1, 13 i D . 9 . Z . 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, A, solely to aid in litigation."). The court 
indicated that future attempts to assert privilege would be 
subject to sanctions if the court found the privilege claim to be 
inconsistent with its framework rulings. See id. at 14; see also 
Order of March 5, 2003, 213 F.R.D. at 59-60 ("Of course, as 
-3 - 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.") . 
3. The government filed notices of appeal from the district 
court's attorney-client and work product rulings. See Appeal 
No. 03-5063 (attorney-client) ; Appeal No. 03-5097 (work product) . 
Secretary Norton filed a notice of appeal, in her individual 
capacity, from the attorney-client ruling. See Appeal No. 03- 
5084. Acting on its owr motion, the Cmrt consolidated these 
three appeals by orders dated Narch 27, 2003, and April 9, 2003. 
Plaintiffs subsequently moved to dismiss the appeals as 
unripe. See Motion to Dismiss, at 5-6 (indicating that 
plaintiffs had not attempted to enforce the December 23, 2002 
privilege order or to reschedule Mr. Cason's deposition so that 
the disputed question could be re-asked!. The government opposed 
c Lhe motion, which was denied. See Order of June 9, 2003. The 
court referred the issue of jurisdiction to the merits panel. 
Ibid. 
DISCUSSION 
In the rulings at issue on these appeals, the district court 
has significantly curtailed the availability of the government's 
attorney-client and work product privileges. The government 
continues to believe that these rulings were incorrect and that 
they were appealable >under this Court's decision in 3nited States 
- 4 - v. Philip Morris, Inc., 314 F.3d 612 (D.C. Cir. 2003). Recent 
developments, however, have diminished the need f o r immediate 
appellate review. 
The government's appeals were prompted in significant part 
by the extraordinary role assigned to Fr. Kieffer in this 
7 . iitigation. As this Court explained, in demanding access to 
Interior 3epartment employees and documents, Mi-. Kieffer 
essentially "acted as an internal investigator, not unlike a 
departmental Inspeccor General except that he reported not to the 
Secrecary bct to the district c c c r t . " 2 0 0 3 JVL 21673009, at *lo. 
At the same time, Mr. Kieffer was empowered to resolve discovery 
dispures brought to him by the parties and to recommend sanctions 
if he believed that the government's objections were inconsistent 
with the district court's framework r d i n g s . See 212 F.R.3. at 
57-60. 
an J u l y 1 8 , ?0", his C o u r t issued a w l - i t of --- kLtaLdamus 
requiring Mr. Kieffer's removal from the case. The Court also 
provided guidance as to the appropriate z s e of Masters and 
Mocitors, emphasizing that "it. was surely impermissible to invest 
the Court Monitor with wide-ranging extrajudicial duties over the 
Government's objection." 2003 WL 21673009, at *11. The opinion 
made plain that the district court has no power to charge a 
special master or monitor "with an investigative, quasi- 
inquisizorial, quasi-prosecutorial role that is unknown to our 
-5- (holding that adversarial system." rbid. See also id. at *!3 
Mr. Kieffer's "prior role and personal invo1vemer.t in this case 
as Court Monitor would cause a reasmable person to doubt his 
ability to remain impartial while serving as Special Master"). 
Mr. Kieffer's removal elininates a situation in which a 
Master-Monitor who should not have held his role in the first 
place was permitted to frame far-reaching discovery requests and 
also to attempt to resolve attorney-client privilege disputes. 
Indeed, since A p r i l 24, 2003, when this C o x r t stayed 
X r . Kieffer's appcintmezt, no significant application of the 
district court's privilege framework has arisen, despite a 40-day 
trial concerning the Interior Department's accounting and trust 
rnanagemenc plans. 
This Court's guidance regarding the proper scope of a 
Master's duties should preclude similar intrusions by other court 
personnel in the fuLcre. ?+s plaintiffs have noted, they have not 
attempted to enforce the December 23, 2 0 0 2 privilege order or to 
reschedule Mr. Cason's jeposition so that t h e disputed qLestion 
cocld be re-asked. See Mocion to Dismiss, at 5-6. IL is unclear 
at this point whether new applications of the fiduciary exception 
will result in rulings that may warrant appellate review. The 
government's dismissal of these appeals is without prejudice to 
its right to challenge any such future rulings, should they 
occur. 
-6- be dismissed. 
For the foregoing reasom, the government's appeals shodd 
CONCLUSION 
Respectfully submitted, 
PETER C. KEISLER 
Assistant Attorney General 
GREGORY G. KATSAS 
Deputy Assistant Actornev 
General 
R03ERT E. KOPP 
ALISA 
MARK 9. 
E. 
STERN 
KLEIK /q- 
LEWIS VELIN 
(202) 514-5089 
Atrorneys, ApDellate Staff 
Civil Division, Room 9108 
Department of Justice 
601 D Street, N.W. 
Washinqton, D.C. 20530 
AUGUST 2003 
-7 (202) 785-4165 
(202) 496-7500 
(404) 815-645C 
CERTIFICATE OF SERVICE 
I hereby certify that on this 12th day of August, 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 C o u r t 
United States Courthouse 
Third and Constitution Ave., N.W. 
Washington, D.C. 23OC1 
Keith M. Harper 
Native American Rights Fund 
1712 N Street, N . k J . 
Washington, D . C . 20036-2976 
Xerbert Lawrerice Fenster 
McKenna Long & Aldrich 
1900 K Street, N.W. 
Washington, D.C. 20006 
and to the following counsel by federal express, overnight mail: 
Elliott Ei. Levitas 
Law Office of Elliott I I . Levizas 
1100 Peachtree Street 
Suite 2800 
Atlanta, GA 30309-4530 
and to the following counsel by first class, regular mail: 
3ennis Marc Gingold 
GO7 14th Street, N.W. 
aox G 
Washington, D.C. 20005 
Alisa B. K l e i n Department of Justice 
Division, ~ppellate S t a f f 
" Street. N.W.. RIG: 9 5 3 0 
MBStern ABKleln 
141-7-1468 
\c; T e l : 120.2) 514-1557 
Fax: (202) 514-9405 
Mr. Mark J. Langer 
Clerk, United States Court of Appeals 
for the District of Coluvbia Circuit 
United States CourEhouse 
Room 5423 
Third & Constitution Avenue, N.W. 
Washington, D.C. 200Cl 
;?e: Cobeil v. Norton, 
Nos. 03-5063, 03-5084, 03-5297 (D.C. Cir.) 
Dear Mr. Langer: 
Please find enclosed for filing in =he above-captioned 
matter an original and four copies of the federal government's 
motion for voluntary dismissal of its consolidated appeals. 
Thank you for your assistance 
Sincerely, 
Alisa B. Kleir? 
Attorney 
cc: Hon. Royce C. Lamberth 
Elliott H. Levitas 
Keith M. Harper 
Dennis Marc Gingold 
Herbert Lawrence Fenster