IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, gt al., 
Plaintiffs, 
1 
) 
1 
1 
v. 
GALE A. NORTON, Secretary of 
the Interior, gt al., 
Defendants. 1 
1 
1 
1 
1 
1 
INTERIOR DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER 
REGARDING PLAINTIFFS’ NOTICE OF DEPOSITION OF ANSON RAKER 
AND REQUEST FOR PRODUCTION OF DOCUMENTS 
On August 2 1, 2003, Plaintiffs noticed the deposition of a non-party Interior employcc, 
Anson Baker, for September 26, 2003. Mr. Baker is the Director of the Northwest Regional 
Appraisal Office for the Department of the Interior and was a subject of the August 20, 2003 Site 
Visit Report of the Special Master to the Office of Appraisal Services in Gallup, New Mexico 
and the Bureau of Indian Affairs Navajo Realty Office in Window Rock, Arizona (“Site Visit 
Report”). The Notice of Deposition of Mr. Raker also included a Request for Production of 
Documents. The document request seeks production of documents from both “defendants and 
the deponent.” Notice of Deposition and Request for Production of Documents at 1-2 (Aug. 21, 
2003) (attached as Exhibit I). The noticed deposition and document requests constitute 
unauthorized discovery, unrelated to any issue within the jurisdiction of this Court. Accordingly, 
pursuant to Federal Rule of Civil Procedure 26(c)( l), Interior Defendants move for a protective 
order to prevent Plaintiffs’ discovery.’ 
li On September 22, 2003, counsel for Interior attempted to confer with counscl for Plaintiffs 
about this Motion for a Protective Order. It is assumcd that Plaintiffs oppose the requested relief. 
1! 
1 1c 
No. 1:96CVO1285 
(Judge Lamberth) I. 
Fed. R. Civ. 
PLAINTIFFS’ DISCOVERY IS UNAUTHORIZED 
On August 20, 2003, the Special Master issued his Site Visit Report, discussing the 
appraisal practices of Mr. Baker in particular, and Interior generally. The next day, Plaintiffs 
noticed the deposition of Mr. Baker and propounded their related document requests.2 
As discussed in the September 12, 2003 Memorandum of Points and Authorities in 
Support of the United States Motion for a Protective Order and the Motion to Quash the 
Subpoena Issued to Government Trial Attorneys Petrie, Quinn, and Spooner, at 13- 14, Plaintiffs 
are not authorized to undertake discovery at this time. Fact discovery for the Phase 1.5 trial 
closed on March 28,2003, and Plaintiffs have not sought leave of Court to take discovery out of 
time for that proceeding, which was concluded over two months ago. Moreover, because the 
parties have not held a discovery planning conference pursuant to Rule 26(f), any discovery 
purportedly related to some future proceeding in this case is also unauthorized. 
P. 26(d), 30(a)(2)(C), 34(b). 
Because no discovery is perniitted at this time, the Court should issue a protective order 
to prevent the noticed deposition of Mr. Baker, and relieve Interior of the obligation of 
responding to the related discovery requests. 
It is not even clear whether the examination Plaintiffs seek of Mr. Baker is in his personal or 
official capacity. Mr. Baker is obviously not a party, or a managing agent of a party, and 
Plaintiffs failed to serve a subpoena compelling his attendance at his deposition as required by 
the Federal Rules of Civil Procedure. &g Fed. R. Civ. P. 30, 37(d). Although the Notice of 
Deposition mentions Mr. Baker’s title, the personal nature of many of the document requests 
(=, personal income tax returns), as discussed below, suggests that the deposition Plaintiffs 
desire to take is in his individual capacity. Moreover, Plaintiffs’ counsel failed to confer with 
Interior Defendants’ counsel before scheduling the deposition of Mr. Baker. If this discovery has 
a personal component, then Plaintiffs’ failure to serve a subpoena under Fed. R. Civ. P. 45 
renders the Notice of Deposition defective. 
2 11. PLAINTIFFS’ DISCOVERY IS NOT RELEVANT TO ANY CLAIM IN THIS 
CASE, AND IS NOT REASONABLY CALCULATED TO LEAD TO 
3 
ADMISSIBLE EVIDENCE 
Even if Plaintiffs were permitted to take discovery at this time, the deposition of Mr. 
Baker and the accompanying document requests would be improper because they deal with 
matters outside the scope of this litigation. Under Rule 26(b)( 1)’ parties may only obtain 
discovery regarding matters that are “relevant to the claim or defense of any party . . . .” Fed. R. 
Civ. P. 26(b)( 1). Although information need not be admissible at trial to be discoverable, it still 
must be “[rlelevant” information and must be “reasonably calculated to lead to the discovery of 
admissible evidence. ” Id. 
Plaintiffs obviously intend to explore the allegations in the Site Visit Report at any 
deposition of Mr. Baker.3 As demonstrated in Interior’s September 4,2003 Objections to the 
Site Visit Report, at 5-10 (which Defendants incorporate herein by reference), the subject matter 
of the Site Visit Report is unrelated to any claim before the Court and, indeed, is beyond the 
jurisdiction of the Court. 
Interior’s appraisal process, as conducted by Mr. Baker or otherwise, although important 
to the management of trust assets, is not related to Plaintiffs’ accounting claims in this case. 
Matters of asset management, as this Court has held, are “not part of this lawsuit.” Cobell v. 
Babbitt, 91 F. Supp. 2d 1, 18 (D.D.C. 1999). 
I! Given the serious nature of the allegations in the Site Visit Report, including an aside by the 
Special Master that Mr. Baker may have violated federal laws, see Site Visit Report at 2 n.4, 
Mr. Baker has retained Rod Lewis of Davis, Wright & Tremaine, in Portland, Oregon, as 
personal counsel. Mr. Lewis has been in contact with Plaintiffs’ counsel and apparently intends 
to file separate papers in response to the deposition notice on behalf of Mr. Baker in his personal 
capacity . Many of Plaintiffs’ document requests are also particularly troubling, in that they are 
related to personal matters and appear designed more to harass and embarrass Mr. Baker than to 
inquire into legitimate matters. See, e.g, Notice of Deposition Document Requests No. 6-8. 
These requests, asking for documents related to his tax returns (Request No. 6), communications 
with the IRS (Request No. 7), and bank statements (Request No. 8) are clearly intended to imply, 
without any substantiation, that Mr. Baker improperly profited personally in his position as 
appraiser. By making these requests, Plaintiffs’ counsel also appear to be appointing themselves 
as quasi-investigators to ferret out imagined wrongdoing even though they have not shown any 
basis whatsoever for their ~upposition.~ They cannot properly assume this role. 
Furthermore, federal income tax returns are confidential communications between the 
taxpayer and the government. St. Regis - Paper Co. v. United States, 368 U.S. 208,219 (1961); 
American Air Filter Co., h c . v. Kannapell, No. 85-3566, 1990 WL 137385 at “3 (D.D.C. Sept. 
10, 1990); Payne v. Howard, 75 F.R.D. 465 (D.D.C. 1977). It is a felony, punishable upon 
conviction by imprisonment up to five years or by fine in any amount up to $5,000, or both, as 
well as discharge from employment, for United States employees to disclose income tax 
information to any person not authorized to receive it. 26 U.S.C. 5 7213(a)(l). Section 6103(a) 
of the Internal Revenue Code, with certain exceptions, specifically prohibits agency disclosure 
LaRouche v. U.S. Dep’t of Treasury, 112 F. Supp. 2d 48, 54 of tax return information. 
(D.D.C. 2000) (Section 61 03 provides that tax returns and return information shall be 
This requested discovery also runs counter to Plaintiffs’ motion urging the court to adopt the 
Special Master’s recommendation in his Site Visit Report that the Court conduct an investigation 
of these matters. Although, as discussed in Interior’s Objections to that Report, Interior does not 
believe that it is appropriate for the Court to conduct such an investigation, Plaintiffs have 
intruded on their requested Court investigation by commencing their own. 
4 confidential and shall not be disclosed except as authorized); Lake v. Rubin, 162 F. 3d 1 13 
(D.D.C. 1998) (same). None of these exceptions, which include disclosure to federal, state, and 
Congressional officials and to private parties in specifically enumerated instance^,^ applies here. 
While release of tax returns can be ordered, courts have been reluctant to permit 
discovery routinely because of the recognition that the information is confidential. American Air 
Filter Co., 1990 WL 137385 at "3; see also Payne, 75 F.R.D. at 469 (courts have broadly 
construed 26 U.S.C. QQ 6103 and 7213(a) to "embody a general federal policy against 
indiscriminate disclosure of tax retunis from whatever source"). The court in American Air 
Filter Co. noted that several courts have adopted a two prong test weighing the above concerns 
against the liberal policies of pretrial discovery. Under that approach, to compel disclosure, the 
court must find: (1) that the returns are relevant to the subject matter of the action; and (2) that 
there is a compelling need for the returns because the information contained therein is not readily 
otherwise obtainable. Id. at *3. Because Plaintiffs seek Mr. Baker's tax returns to intimidate, to 
engage in a fishing expedition, and to pursue information that plainly is not relevant to the 
subject matter of this litigation, protection is most appropriate. 
Disclosure to private parties is permitted: (1) for the individual taxpayer to inspect his own 
return and any return information associated with that return, 26 U.S.C. Q 6103(e)(l), (6); (2) for 
a written designee of a taxpayer to examine return information of that taxpayer, 26 U.S.C. 
9 6103(c); and (3) for certain persons, other than the taxpayer, deemed to have a "material 
interest" in tax returns, 26 U.S.C. Q 6103(e)(l)(C)-(F), (e)(6). Plaintiffs are none of these. 
5 Because the discovery sought through the deposition of Mr. Baker, and the accompanying 
document requests, is unrelated to any claim in this case, it is impermissible discovery.6 Under 
these circumstances, this Court should order that the “discovery not be had.” Rule 26(c)(l). 
Dated: September 22, 2003 
1 
CONCLUSION 
For these reasons, Interior’s Motion for a Protective Order should be granted. 
Respectfully submitted, 
ROBERT D. McCALLUM JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
D.C.B 0. SPooNER 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
CYNTHIA L. ALEXANDER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
Many of the document requests are also objectionable as overbroad, unbounded in time, and 
unduly burdensome. See, e.g, Requests No. 1-3, 5. In addition, to the extent that the requested 
documents relate to “tribal land” (Request No. l), and “tribal trust lands” (Request No. 2), as 
opposed to individual Indian allotted land, this information is also outside the scope of this 
litigation. If required to respond to these requests, Interior reserves the right to assert all its 
objections. 
6 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, a 4, 
Plaintiffs, 
V. Case No. 1:96CVO1285 
(Judge Lamberth) 
1 
) 
) 
) 
1 
1 
GALE NORTON, Secretary of the Interior, gt &, ) 
) 
1 
Defendants. 
it is hereby 
further 
SO ORDERED. 
Date: 
ORDER 
This matter comes before the Court on Interior Defendants’ Motion for a Protective Order 
Regarding Plaintiffs’ Notice of Deposition of Anson Baker And Request For Production of 
Documents. Upon consideration of the Motion, the responses thereto, and the record in this case, 
ORDERED that Interior Defendants’ Motion for a Protective Order is GRANTED; it is 
ORDERED that the Plaintiffs are precluded from deposing Anson Baker at this time; 
ORDERED that Defendants need not respond to the document production requests 
included with the notice of deposition of Anson Baker; 
ROYCE C. LAMBERTH 
United States District Judge cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commerci a1 Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Cingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Alan L. Balaran, Esq. 
Special Master 
17 1 7 Pennsylvania Avenue, N. W. 
13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Earl Old Person (Pro se) 
Black feet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
Rod Lewis, Esq. 
Davis, Wright & Tremaine, LLP 
1300 SW Fifth Avenue, Suite 2300 
Portland, Oregon 97201 -5630 
(503) 778-5299 -+ KOHN 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al-, 
Plaintiffs 
v. Case No.l:96CVOI285 (RCL) 
) 
} 
1 
1 
) 
1 
1 
1 GALE NORTOIV, Secretary 
Defendants. 
NOTICE OF DEPOSITION and REOUEST FOR PRODUCTTON OF DOCUMENTS 
The Honorable Alan L. Balaran 
Special Master 
lo: Mxk E. Naglc 
Assistant U. S. Attorney 
Judiciary Center Building 
555 Fourth Street, NW, Room 10-403 
Wrtshington, DC 20001 
B y Facsimile) 
J. Christopher Kohn 
United States Department of Justicc 
Civil Division 
Washington, DC 20005 
(By Facsimile) 
1100 L Street, NW, Room 10036 
httornevs for Defeiidanls 
PLEASE TAKE NOTICE, that on September 26, 2003, at plaintiffs counsel’s offices, 
the Native American Rights Fund, 1712 N Street, h W, Washington D.C. 20036, plaintiffs in this 
action will take the dcposition of Anson Baker, Director. Northwest Regional Appraisal Office. 
D e p m e n t of Interior, 1549 C Street, NW, Room 7229, Washington, DC 20240. 
This deposition will commence at 1O:OO a m . and will continue from day to day until completed. 
Testimony will be recorded by steiiogaphic means 
PLEASE T A I C EURTI-IER NOTICE - Request is hereby madc t h i t defendants and the 
171 7 Pennsylvania Avenue, NW 
1 3Ih Floor 
Waslungton, DC 20006 
(By Facsimile) 
Defs’ Motion for a P 0 i e Pltfs’ Notice 
EXHIBIT 1 
of Depo & WP on Anson Baker deponent produce on or before Septcmber 22, 2003 Lhe following documents: 
All documents, including without limitation memoranda, handwritten notes and 1. 
marginalia, calendars: diaries, appointment books, schedulers, pli.uulners, Day-Timers, time 
records, voica mail, email, and the like, all hard copy documents, and electronic 
documents housed in, or created on, computers or personal digital assistants, whether the 
coniputers are owned or leased by thc government, its agcnts, employees, Mr. Baker OT 
any other individual or othcr entity, and any drafts thereof. which dircctly or indirectly 
relate to, refer to, or embody material regarding the appraisal of individual Indian allotted 
land and tribal land. 
Any documents including fegal opinions, memoranda, instructions or other material relied 
upon by Mr. Baker or any individuals under his supervision now or in die past which 
address or relate in any way to the appraisal of individual Indian trust lands or tribal trust 
lands, including but not limitcd to governing policies or standards for any such appraisal 
activities. 
All documents, including without limitation memoranda, handwitten notes and 
marginalia, calendars, diaries, appointment books, schedulers, planners, Day-Timers, time 
records, voice mail, email, and the like, all hard copy documents, and electronic 
documents housed in, or created on, computers or personal digitai assistants2 whether the 
computers are owned or leased by the govcmmcnt, its agents, cmployees, Mr. Baker or 
any other individid or other entity, and any drafts thereof, which embody, refer to or 
relate to any conmunication between Mr. Baker and any third-party lessee or contractor - 
including, but not limited to an); agent, representative or any other direct or indircct 
intermediary of such third-party lessee or contractor - of individual Indi,m trust assets. 
2. 
-. 7 
4. 
5. 
A resumc or curriculum vitae, Iicenccs, and profc.ssions1 certifications of Mr. Raker. 
A11 documents, whether in hard copy or dcctronic format - including df memoranda, 
voice mail, email, handwritten notes and marginalia - that relate to, sefcr to, or cmbody, 
directly or indirectly, generally or specifically, and informal or fonnal, disciplinary or 
.+ KOHN 
2 6. 
7. 
calendar year 1983. 
8. 
personnel action, Lhrealened disciplinary or personnel action, investigations. 
ex,minations, assessments or adverse or critical perfonnance reviews "(-'Professional 
Evaluations") concerning Mr. Baker or any employee under his supervision. 
A11 federal and state ta,, returns for Mr. Baker since calendar year 1983, including but not 
All conununications by and between the Internal Revenue Service and Mr. Baker since 
All bank statements, bank books, credit card statements, personal financial statements, 
checking account statements, savings account statements, mutual fund stalemenu aid all 
other statements which embody, rcflect, or relate to assets or investments made or held by 
Mr. Baker, including those assets held or invested on behalf of Mr. Baker in the 
possession of agents, representatives or any other third party since 1983. 
-+ ROHN 
limited to, all supporting documentation for such returns. 
N.4RF DC 
D.C. BxNo. 41 7748 
D.C. Bar No. 470952 
OF COUNSEL: 
JOHN ECHOHAWK 
Native American Rights Fimd 
1 SO6 Broadway 
Boulder, Colorado 80302 
August 2 1,2003 
MARK KESTER BROWN 
GO7 14"' Street., N. W. 
9th Floor 
Washington, D.C. 20005 
KEf-TH M. HARPER- 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, NW 
Washington, DC 20036-2976 
Attornevs for Plaintiffs 
3 
@l 0 0 3 CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on September 22, 2003 I served the foregoing 
Interior Defendants ’ Motion for a Protective Order Regarding Plaitztiffs ’ Notice of Deposition of 
Anson Baker And Request for Production ofDocunzents by facsimile in accordance with their 
written request of October 3 1,200 1 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
By Facsimile and U.S. Mail upon: 
Alan L. Balaran, Esq. 
Special Master 
1717 Pennsylvania Avenue, N.W., 13th Floor 
Washington, D.C. 20006 
(202) 986-8477 
Per the Court’s Order of April 17, 2003, 
by Facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Black feet Tribe 
P.O. Box 850 
Browning, MT 594 17 
(406) 338-7530 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
Rod Lewis, Esq. 
Davis, Wright & Tremaine, LLP 
1300 SW Fifth Avenue, Suite 2300 
Portland, Oregon 97201-5630 
(503) 778-5299