IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 (RCL) ) (Special Master Alan Balaran) GALE A. NORTON, Secretary of the Interior, et al.,) ) Defendants. ) ) DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY OF PLAINTIFF ELOUISE COBELL AT DEPOSITION The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior Defendants"), pursuant to Fed. R. Civ. P. ("Rule" or "Rules") 26(c) and 37, hereby move that this Court enter an order requiring Plaintiff Elouise Cobell to appear and give testimony at a deposition. Background On July 2, 2002, Interior Defendants served Plaintiffs with a Notice of Deposition, which, pursuant to Rule 30, set the deposition of Plaintiff Elouise Cobell to begin on July 30, 2002, at the offices of Interior Defendants' attorneys. A copy of that Notice of Deposition is attached as Exhibit A. On July 5, 2002, Plaintiffs filed a motion for protective order, seeking a stay of the deposition of Ms. Cobell, and of all other discovery by Defendants. l Ms. Cobell did not appear 1 See Plaintiffs' 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; and (3) Stay of Rule 11 Motion With Respect to Court-Ordered Attorney's Fees, filed July 5, 2002 ("Plaintiffs' Motion for for her scheduled deposition. 2 On July 16, 2002, Interior Defendants' filed their Opposition to Plaintiffs' Motion for Protective Order. Plaintiffs filed a reply on July 24, 2002. Thus, Plaintiffs' Motion for Protective Order is fully briefed and awaiting a ruling. An Order Compelling Ms. Cobell's Appearance and Testimony Is Appropriate Even though denial of the Plaintiffs' Motion for Protective Order would dispose of the objections that Plaintiffs raised to the deposition of Ms. Cobell, Interior Defendants seek an order requiring her to appear and testify at her deposition, in order to ensure that the deposition takes place promptly, without Plaintiffs engaging in further effbrts to unduly delay or avoid a deposition• Rule 26(c) provides, in pertinent part, that if a motion for protective order is "denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery." Rule 37(d) provides, in pertinent part: (d) Failure of Party to Attend at Own Deposition .... Ifa party •.. fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice.., the court in which the action is pending on motion may make such orders in regard to the failure as are just .... The fhilure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). (emphasis added). Protective Order"). 2 Plaintiffs also failed and refused to produce any documents in response to Interior Defendants' Request for the Production of Documents, Dated June 5, 2002. On July 16, 2002, Interior Defendants filed a separate motion to compel the production of those documents. -2- An order compelling Ms. Cobell to appear for a deposition is appropriate and just. The only bases cited by Plaintiffs for Ms. Cobell's refusal to be deposed are those stated in their Motion for Protective Order, i.e., because, Plaintiffs contend, Defendants did not respond to discovery as Plaintiffs desired, or because of other alleged bad acts by Defendants, and because Plaintiffs seek a "respite." As shown in Interior Defendants' Opposition to Plaintiffs' Motion for Protective Order, filed on July 16, 2002, and which is incorporated herein by reference, the grounds relied upon by Plaintiffs are insupportable justification for their requested blanket exemption from all depositions and other discovery obligations. Therefore, Plaintiffs' Motion for Protective Order should be denied and PlaintiffElouise Cobell should be ordered to appear for her deposition. Conference With Opposing Counsel Counsel for Interior Defendants called Plaintiffs' counsel to discuss the relief requested in this Motion, and Plaintiffs' counsel said that Plaintiffs do not agree to such relief. (CONTINUED ON NEXT PAGE) -3- Conclusion For the foregoing reasons, Interior Defendants request that the Court enter an order requiring PlaintiffElouise Cobell to appear and give testimony at a deposition, on dates to be selected by Interior Defendants. 3 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Dir_l ' (, .. SANDRA P. SPI Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney DAVD J. GOTTESMAN Trial Attorney 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: August 16, 2002 3 Of course, Interior Defendants' attomeys will confer with Plaintiffs' attomey in a good faith effort to select mutually agreeable dates, but if no a_eement can be reached, Interior Defendants should be entitled to select the dates. -4- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE A. NORTON, Secretary of the Interior, et all.,) ) Defendants. ) ) NOTICE OF DEPOSITION TO: Mr. Dennis M. Gingold Mr. Mark Kester Brown P.O. Box 14464 Washington, D.C. 20044-4464 Fax: 202/318-2372 PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30, the Secretary of the Interior and the Assistant Secretary - Indian Affairs shall conduct the oral deposition of Plaintiff - ELOUISE PEPION COBELL, at the offices of Defendants' attorneys, U.S. Department of Justice, Civil Division, 1100 L Street NW, 10th Floor, Washington, D.C., beginning at 9:30 a.m. on July 30, 2002. To the extent permitted by applicable rules, the deposition may continue on subsequent dates to be scheduled later. (CONTINUED ON NEXT PAGE) Attachment 1 Defendant's Motion to Compel Appearance of PlaintiffCobell This Notice of Deposition requires the appearance of the above-named deponent for the entirety of the deposition. The deposition will be recorded by sound-and-visual and stenographic means. Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Dired'or A Deputy Director _ JOHN T. STEMPLEWICZ Senior Trial Attorney DAVID J. GOTTESMAN Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 - Tel: (202) 307-0183 Dated: July ,_/---- , 2002 -2- CERTIFICATE OF SERVICE I declare under penalty of perjury that, on July 2, 2002, ! served the foregoing Notice of Deposition by facsimile only, in accordance with their written request of October 31, 2001, upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark 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 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Courtesy copy by U.S. Mail and by fax upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., N.W. 12th Floor Washington, D.C. 20006 202-986-8477 Sean P. Schmergel IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al____., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) (Judge Lamberth) GALE NORTON, Secretary of the Interior, et al____., ) ) Defendants. ) ) ORDER COMPELLING PLAINTIFF ELOUISE COBELL TO APPEAR AND TESTIFY AT DEPOSITION This matter comes before the Court on Defendants' Motion to Compel Appearance and Testimony of Plaintiff Elouise Cobell at Deposition. After considering that motion, any responses thereto, and the record of the case, the Court finds that the motion should be GRANTED. IT IS THEREFORE ORDERED that Plaintiff Elouise Cobell shall appear and give testimony at a deposition in this cause, on dates to be selected by Interior Defendants. SO ORDERED this __ day of ., 2002. ROYCE C. LAMBERTH United States District Judge CC: Sandra P. Spooner John T. Stemplewicz Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 CERTIFICATE OF SERVICE I declare under penalty of perjury that, on August 16, 2002 1 served the foregoing Defendants' Motion to Compel Appearance and Testimony of Plaintiff Eloise Cobell at Deposition by facsimile upon: Keith Harper, Esq. Dermis M Gingold, Esq. Native American Rights Fund Mm'k Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 V_rashington, D.C. 20004 (202) 318-2372 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 (202) 986-8477 Courtesy Copy by U.S. Mail upon: Joseph S. Kieffer, m Court Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 ... . . g //.. v V