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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) P!aintiffs, ) Civi! Action No. 96-1285 (RCL) ) ) ) GALE A.

NORTON, eta!., ) ) Defendants. ) ___________________________________________________________________________) ELOUISE PEPION COBELL, eta!., DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER QUASHING PLAINTIFFS' AMENDED NOTICES OF DEPOSITION SERVED SEPT. 29, 2005 In an effort to expand this !itigation into yet another co!!atera! proceeding, P!aintiffs urge the Court to disregard the Court of Appea!s' binding ru!ing in Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003) (Cobell VIII), to tramp!e on the due process rights of individua!s whom P!aintiffs have direct!y accused of crimina! as we!! as civi! contempt. The Court shou!d grant the government's motion and enter the protective order as proposed. 1. Pursuant to Cobell VIII, P!aintiffs' motion for an order to show cause concerning the Levine issue sounds so!e!y in crimina! contempt because it invo!ves past conduct. Specifica!!y, P!aintiffs contend in their motion that a considered - but rejected and withdrawn transfer of Ms. Levine vio!ated the Court's May 21, 1999 Order. P!aintiffs now go far beyond the proposed transfer and assert there is some continuing vio!ation of the May 21, 1999 Order based on vague and unsubstantiated a!!egations that Ms. Levine is being denied sa!ary increases and awards and that the Department is p!acing adverse materia!s in her personne! fi!e and "otherwise vio!at[ing! personne! ru!es." Plaint!ffs' Consolidated Opposition to Defendants'

Motion for a Protective Order Quashing Plaint4ffs 'Amended Notices ofDeposition Served Sept. 29, 2005 ("Plaintiffs' Opp.") at 5 [Dkt. No. 31861. An opposition to a motion for a protective order is not the proper place for Plaintiffs to expand their allegations. In any event, Plaintiffs have not come close to establishing - and in fact have not even attempted to establish - a prima facie case for any sort of contempt on these vague grounds. They certainly have not met this Court's requirement set out more than three and a half years ago that "you need to specif!y by person so that each of them can respond to what the specifications would be and what the evidence would be so that each of them can have an opportunity to have due process." Cobell v. Norton, Civ. Action No. 96-1285 (RCL), Transcript of March 15, 2002 Status Hearing, at 23:710. The Court should, accordingly, disregard these new and unsubstantiated charges. Given this Court's recognition that each person accused of contempt is entitled to due process, it is remarkable that Plaintiffs now urge the Court to disregard that entitlement. Plaintiffs attack the government's defense of this entitlement as "vague." Plaintiffs' Opp. at 10. It is not. Aside from this Court's acknowledgment that, at a minimum, persons accused of contempt have a right to know the specific charges against them, the Court of Appeals has also stated that, where a contempt proceeding is "criminal rather than civil in nature, and the allegedly contumacious behavior occurr[edl outside the presence of the court, the defendants were entitled to the usual protections of the criminal law, such as trial by jury and proof beyond a reasonable doubt." Cobell VIII at 1147. The rights of the Named Individuals (including the

Secretary) are not limited to the right to remain silent, as Plaintiffs seem to argue.1 The Court 1 It appears that plaintiffs are hoping the Named Individuals whose depositions they have noticed will invoke their rights under the Fifth Amendment so that plaintiffs can seek adverse (continued...) 2

should not now abandon its commitment to observe the due process rights of these individuals, whom Plaintiffs repeatedly (albeit without substantiation) accuse of criminal misconduct. 2. criminal Plaintiffs have made no secret of their intent to pursue grounds for

contempt sanctions against the Named Individuals, other than the Secretary. Yet, even their allegations against the Secretary sound - if anything - in criminal, rather than civil, contempt. The sole act of alleged contempt identified in Plaintiffs' Motion to Show Cause upon which Plaintiffs based their demand for discovery - was a proposed transfer that was not effected and that has been withdrawn There is nothing to purge, and Plaintiffs suffered no monetary losses from the withdrawn proposal. Plaintiffs' disingenuous reading of Cobell VIII notwithstanding, the Court of Appeals made clear in that decision that attorney's fees incurred in establishing a contempt claim do not alter the underlying nature of the proceeding. Cobell VIII at 1 146!47.2 1C. .continued) inferences against defendants and thereby obtain contempt sanctions while avoiding the need to actually prove their allegations. Even the civil burden of proof for contempt is a substantial one - namely, clear and convincing evidence. Further, as this Court has noted, "the 'extraordinary nature' of the remedy of civil contempt leads courts to 'impose it with caution." SEC v. L!fe Partners, Inc., 912 F. Supp. 4, 11 (D.D.C. 1996) (quoting Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987)). In light of the severity of the contempt sanction, it should not be resorted to "if there are any grounds for doubt as to the wrongfulness of the defendants' conduct." L!fe Partners, 912 F. Supp. at 11, citing AL4C Corp. v. Williams Patent Crusher & Pulverizer Ca, 767 F.2d 882, 885 (Fed. Cir. 1985). Thus, even if the depositions were to proceed and witnesses invoked their rights under the Fifth Amendment, it would not be appropriate for the Court to impose civil contempt sanctions against the defendants in the

absence of clear and convincing evidence of a violation of the May 21, 1999 Order. 2 Plaintiffs also misconstrue Cobell VIII in contending that the Court of Appeals found that "the Norton civil contempt order was too narrowly drawn and, as a consequence, imposed 'no sanction at all." Plaintiffs' Opp. at 6. To the contrary, the Court of Appeals found that this Court had indeed imposed a sanction on Secretary Norton and former Assistant Secretary McCaleb in the form of a public reprimand. Cobell VIII at 1146. The Court of Appeals then went on to conclude that this sanction was imposed pursuant to a proceeding that "was, and (continued...) 3

Otherwise, Plaintiffs could make any proceeding civil simply by filing a motion to show cause and sending out a deposition notice, just as they attempt to do here. Rather, the Court must examine the conduct that is alleged to have violated its order, and determine what relief would be available to Plaintiffs. Plaintiffs have not - and cannot demonstrate that the withdrawn proposal to transfer Ms. Levine is anything other than past conduct. Neither purgation conditions nor any form of monetary relief are available in these circumstances. Accordingly, any proceeding that would ensue from Plaintiffs' allegations would necessarily be criminal in nature. Plaintiffs themselves state that their motive is "to ensure the integrity of the proceedings and provide a safe environment for Interior witnesses to tell the truth." Plaintiffs' Opp. at 7!3 Yet those purposes are precisely the sort that denote a criminal contempt proceeding, the purpose of which is "to vindicate the authority of the court' following a transgression.....Cobell VIII at 1145 (quoting International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994)). In sum, the allegations Plaintiffs have made in their show cause motion involve past conduct. Plaintiffs have not established aprimafacie case of any contempt, but even if they were to do so, the proceeding would necessarily be criminal, rather than civil, in nature. Accordingly, Plaintiffs are barred from participating in any investigation of the alleged violation 2( .continued) should have been treated as being, for criminal contempt." Ibid. There is considerable irony in Plaintiffs' claim to be interested in providing a "safe environment for Interior witnesses to tell the truth" while recklessly launching unsubstantiated

allegations of civil and criminal contempt against Interior witnesses whose testimony they do not happen to like. Such tactics appear calculated to intimidate and silence, rather than to promote truthful testimony. 4

of the May 21, 1999 Order in connection with Ms. Levine's proposed transfer. Young v. United States cx ret. Vuitton et Fits SIA., 481 U.S. 787, 814 (1987); Landmark Legal Foundation v. EPA, 272 F. Supp. 2d 70, 77 (D.D.C. 2003); Cobell v. Norton, Civ. Action No. 961285 (RCL), Sept. 2,2004 Order at 4-5 [Dkt. No. 266fl. 3. Even if Plaintiffs' show cause motion did raise civil contempt allegations, the Court should not permit Plaintiffs to conduct discovery into those allegations when they have not established aprimafacie case for contempt. Contempt proceedings are, by nature, collateral matters. While the scope of civil discovery permitted by Fed. R. Civ. P. 26(b)U) is indeed broad, it is not infinite.4 Before the parties and witnesses expend the time and cost of discovery on a collateral matter, the Court should first determine that there has been aprimafacie showing of civil contempt. In the absence of such a showing, Plaintiffs should not be allowed to engage in the wide-ranging discovery they appear poised to undertake in the hopes of coming up with some evidence in support of their claims. The cases cited in Defendants 'Motion for Protective Order Quashing Plaint!ffs 'Notice ofDeposition ofRobert Hatfield and Supporting Memorandum ofPoints andAuthorities at 5-6 (filed Oct. 20, 2005) confirm that "[blefore being permitted to take extensive discovery on the issue of compliance with a court's order, the party seeking such discovery bears the burden of making a prima facie case that there has in fact been disobedience of the order." Massachusetts Union ofPublic Housing Tenants v. Pierce, 1983 WL 150 at *4 (D.D.C. 1983) (citing Central Soya Ca v. Geo. A. Hormel & Co., 515 F. Supp. 798, Z! Moreover, defendants responding to complaints have the ability to

challenge the legal and factual sufficiency of plaintiffs' allegations by filing a motion to dismiss in lieu of an answer before being required to respond to discovery. Fed. R. Civ. P. 12. Requiring Plaintiffs to demonstrate aprimafacie case of civil contempt before allowing them to proceed with discovery would serve a similar purpose to Rule 12 and promote judicial economy. S

799 (W.D. Okia. 1980)); Wesley Jessen Corp. v. Bausch & Lomb, Inc., 256 F. Supp. 2d 228, 229 (D. Del. 2003). Plaintiffs have not made out aprimafacie case of any sort of contempt, and accordingly, no discovery should be allowed regarding the Levine matter. Moreover, because it is clear that Plaintiffs are in fact seeking to establish grounds for criminal contempt sanctions, to permit them to use the broad discovery provisions of the Civil Rules for what is not even thinly disguised as a criminal investigation would thwart the care that has been taken in the crafting of the Federal Rules of Criminal Procedure to protect the due process rights of accused individuals. By claiming to be pursuing only civil sanctions while in the same breath urging the Court to impose criminal sanctions, Plaintiffs reveal their intent to use the Civil Rules as a stalking horse to obtain evidence of criminal contempt. Clearly, such an effort constitutes an abuse of the civil discovery process and warrants a protective order under Rule 26(c). 4. Defendants explained in their Motion for Protective Order why it is improper to demand that Interior designate a Rule 30(b)(6) deponent regarding an investigation being conducted by a separate government agency, the National Archives and Records Administration ("NARA").5 In their Opposition, Plaintiffs do not address this matter and it should, therefore, be deemed conceded. Good cause exists to issue a protective order to prevent Rule 30(b)(6) testimony on this topic. Counsel for NARA also wrote a letter to counsel for Plaintiffs explaining that the records at issue were within the legal custody and control of NARA and that NARA's Office of Inspector General was conducting the investigation. See Letter of September 28,

2005 from Jason Baron to Dennis Gingold (attached as an exhibit to Defendant's Notice of Filing of September 2005 Status Report by the Department of the Interior Office of Trust Records [Dkt. No. 3191!. 6

5. matters,

Even if Plaintiffs were entitled to obtain discovery regarding contempt

they do not explain why they need a deposition of the Secretary of the Interior to try to obtain such information. As discussed in the Motion for a Protective Order, before Plaintiffs may take the deposition of a high ranking government official, they must identify the specific information that they would seek and show that they unsuccessfully fried to obtain this information from other sources. See Memorandum at 13-14. In Alexander v. FBI, 186 F.R.D. 1, 4 (D.D.C. 1998), this Court identified the governing principle: There is substantial case law standing for the proposition that high ranking government officials are generally not subject to depositions unless they have some personal knowledge about the matter and the party seeking the deposition makes a showing that the information cannot be obtained elsewhere.

kL (citing cases) (emphasis in original).6 Because Plaintiffs have not identified the specific, essential, information they seek to elicit from the Secretary, Defendants, and the Court, cannot evaluate whether the Secretary would have personal knowledge of such information and whether it is relevant. In any event, under the principle identified and applied by this Court, until Plaintiffs show that they first fried 6 Plaintiffs suggest that the Secretary somehow waived the right to apply this principle because she has previously testified "before this Court and before Congress." Plaintiffs' Opp. at 19. Plaintiffs' argument is incorrect. The principle that high government officials should not testif!y is not an absolute shield but rather is dependent upon the circumstances under which the testimony is sought. Defendants do not argue that Plaintiffs could never get the testimony, but rather that each time they try to get testimony from a highly ranked government official they have to meet the prerequisites, j!, (1) identif!y the specific information they wish to elicit, and of

which the official could reasonably be expected to have personal knowledge, and (2) show that the information was unobtainable from some other source. Testif!ying once in a proceeding cannot "waive" Plaintiffs' obligation to meet this standard the next time, and every time, that they try to obtain information from that official. 7

- and failed - to get specific information from some other source, Plaintiffs may not take the deposition of the Secretary of the Interior. 6. Finally, Plaintiffs' comments concerning the potential assertion of investigative privilege are inapposite. Plaintiffs do not deny that an investigative privilege may attach to some subjects if a deposition of the OIG were allowed, but they argue instead that the privilege should be asserted before a question is even posed. They misplace reliance on document production cases and refer (erroneously) to the provision of privilege logs. The instant motion, however, concerns oral depositions not documents requests. Plaintiffs provide no authority establishing that assertion of an investigative privilege must occur before deposition questions have been posed. Conclusion For all the forgoing reasons and for those set forth in Defendants' Motion for a Protective Order, Defendants request that the Court grant their motion and enter a protective order quashing Plaintiffs' amended notices of deposition served September 29, 2005. 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 MICHAEL F. HERTZ Directors 8

/s/ Tracy L. Hilmer Dodge Wells Assistant Director D.C. Bar No. 425194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: October 31, 2005 9

CERTIFICATE OF SERVICE I hereby certif!y that, on October 31, 2005 the foregoing Defendants' Reply in Support of Motion for a Protective Order Quashing Plaint4ffs'AmendedNotices ofDeposition Served Sept. 29, 2005 was served by Electronic Case Filing, and upon the following, who is not registered for Electronic Case Filing, by facsimile: Earl Old Person (Pro se) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 Fax (406) 338-7530 /s/ Jay St. John Jay St. John 10