UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
ELOUISE PEPION COBELL, eta!., )
)
P!aintiffs, ) Civi! Action No. 96-1285 (RCL)
)
)
)
GALE A. NORTON, eta!., )
)
Defendants. )
___________________________________________________________________________)

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and withdrawn -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 23:7-

10. 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. Plaintiffs have made no secret of their intent to pursue grounds for

criminal

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. 96-
1285 (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. Even if Plaintiffs were entitled to obtain discovery regarding contempt
matters,

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