<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
	ELOUISE PEPION COBELL, et ak,	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. 1:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et ~L~)
		)
	Defendants.	)
INTERIOR DEFENDANTS! MOTION FOR
PROTECTIVE ORDER REGARDING
PRIVILEGED DOCUMENTS REFERENCED IN
THE SEVENTH REPORT OF THE COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affafrs ("Interior
Defendants" or "Interior") hereby move that this Court enter an order providing Interior with
relief in order to provide due protection to six specific privileged documents that the Court
Monitor inappropriately used and disclosed in the Seventh Report of the Court Monitor
("Seventh Report"), filed May 2, 2002. In particular, Interior requests that the Court order (1)
that the copies of the privileged documents attached to the Seventh Report be removed and
deemed stricken from the record, and returned to Interior; (2) that portions of the Seventh Report
that disclose or discuss the content of the Privileged Documents, ~ pages 66 ~ seq., be
stricken; (3) that the Court Monitor, Plaintiffs, and Plaintiffs' attorneys return all copies of the
Privileged Documents to Interior; and (4) that publication or use of the Privileged Documents in
any way shall be barred, without permission by the Government or an order from the Court, after
due process to Interior.
<< COB0000002 >>
	Interior's Memorandum of Points and Authorities, which accompanies this motion,
demonstrates the grounds for the relief we request.
	Counsel for Interior Defendants called counsel for Plaintiffs to ask if he would agrce to
the relief sought by this motion, but he refused.
	Therefore, Interior requests that this Court enter the proposed order submitted herewith,
granting the relief stated above, or such other and further relief to which Interior might be
entitled.
Respectfully submitted,
ROBERT D. McCALLUM
Assistant Attorney General
STUART E. SCHTFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
-2-
<< COB0000003 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, et ak,
		)
	Plaintiffs,	)
		)
	v.	)	CaseNo. l:96CV01285
)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior et aLt)
		)
	Defendants.	)
INTERIOR DEFENDANTS' MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR PROTECTIVE ORDER REGARDING
PRIVILEGED DOCUMENTS REFERENCED IN
THE SEVENTH REPORT OF THE COURT MONITOR
	The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Interior
Defendants" or "Interior") state the following in support of their Motion for Protective Order
Regarding Privileged Documents Referenced in the Seventh Report of the Court Monitor.
Introduction
	The Seventh Report of the Court Monitor inappropriately disclosed six privileged
documents, without affording Interior Defendants a fair opportunity to have their claims of
privilege protected or even decided after notice and a hearing. As shown below, the subject
documents clearly are covered by the attorney-client privilege and the work product doctrine,
those privileges have not been waived, and relief is appropriate in order to preserve the
privileges.
<< COB0000004 >>
Background
	The Court Monitor filed the Seventh Report of the Court Monitor ("Seventh Report") on
May 2, 2002. Attached to the Seventh Report are the following six documents (the "Privileged
Documents"):
1.	March 29, 2002 letter from Sandra P. Spooner, Deputy Director, Department of
Justice ("DOJ"), to Larry Jensen, Counselor to the Solicitor, Department of the
Interior transmitting and discussing recent Special Master requests and attaching
certain prior letters from DOJ (produced to Special Master as SMREQOOO2 156-P
through SMREQOOO2I6O-P)) attached to Seventh Report at Tab 13;
2.	March 25, 2002 letter and revised draft supplemental search memorandum for
Special Master's February 7, 2002 request (as clarified on March 8, 2002)
regarding the QIRM move from Peter B. Miller, Trial Attorney, DOJ, to Larry
Jensen, Counselor to the Solicitor, Department of the Interior (produced to
Special Master as SMREQOOO2 167-P through SMREQOOO2 1 72-P), attached to
Seventh Report at Tab 13;
3.	March 20, 2002 letter from Peter B. Miller, Trial Attorney, DOJ, to Larry Jensen,
Counselor to the Solicitor, Department of the Interior transmitting and discussing
Special Master's March 20, 2002 request regarding IT security (produced to
Special Master as SMREQOOO2I8O-P), attached to Seventh Report at Tab 13.
4.	April 12, 2002 memorandum from Thomas Slonaker, Special Trustee, to William
Myers, Solicitor, DOI, discussing legal advice received by the Office of the
Special Trustee concerning its document production in response to the Special
Master's 3/19/02 request regarding the Lee's Summit records transfer and quoting
and transmitting the 3/19/02 letter from the DOJ to the Office of the Solicitor
transmitting and discussing the Special Master's 3/19/02 request (produced to
Special Master as SMREQOOO26I 0-P through SMREQOOO26l 4-P); unnumbered
copies are attached to Seventh Report at Tab 16.
5.	March 19, 2002 letter from Amalia B. Kessler, Trial Attorney, DOJ, to Larry
Jensen, Counselor to the Solicitor, Department of the Interior transmitting and
discussing Special Master's 3/19/02 request regarding Lee's Summit records
transfer (produced to Special Master as SMIREQOOOI357-P through
	'Although we list Bates numbers on the copies attached to the Seventh Report, Interior
produced to the Special Master additional copies of some or all of these documents, with
different Bates numbers.
-2-
<< COB0000005 >>
SMREQOOO1358-P and as SMREQOOO2613-P through SMREQOOO2614-P);
unnumbered copy of the letter is attached to Seventh Report at Tab 16.
6.	April 24, 2002 memorandum from Thomas Thompson, Principal Deputy Special
Trustee, Department of the Interior, to William Myers, Solicitor, Department of
the Interior and Larry Jensen, Counselor to the Solicitor, through Tom Slonaker,
Special Trustee, Department of the Interior discussing March 29, 2002 letter from
Sandra Spooner, DOJ, to Larry Jensen, attached to Seventh Report at Tab 12 and
Tab 16.
The Seventh Report discusses the substance of these documents at a number of places. ~, ~
Seventh Report at 66 ~ seq. Interior filed its Response to the Seventh Report of the Court
Monitor on May 16, 2002, asserting the privileges discussed herein, and objecting to the Court
Monitor's publication and disclosure of these documents.
	The Interior Defendants produced documents numbered 1 through 5 to the Special Master
in camera with a privilege log in response to his March 29, 2002, request for "instructions"
issued by the Department of the Interior, the Solicitor's Office and the DOJ, "seeking
compliance~, with his prior requests for documents relating to IT security, the OIRM move from
Albuquerque to Reston, and the records move from Albuquerque to Lee's Summit. See
transmittal letters and privilege logs within Attachments A through E to Interior's Response to
the Seventh Report.
	In so producing those documents to the Special Master, Interior Defendants claimed
attorney-client and work product privileges because they concern the purely litigation-related
topic of responding to the Special Master's document requests in Cobell v. Norton rather than the
broader issue of Interior's trust obligations. The documents were listed on a privilege log and
produced to the Special Master in camera on the condition that they not be produced or made
public without Interior Defendants first having an opportunity to seek a final ruling on the issue
-3-
<< COB0000006 >>
of work product and attorney/client protection. See letter dated February 7, 2002, from Alan
Balaran to DOJ attorney Peter Miller (included at Tab 13 of the Seventh Report); see ~ each of
the letters from DOJ attorneys to Alan Balaran, witl!Iin Attachments A through E to Interior's
Response to the Seventh Report. The sixth document (the April 24, 2002 memorandum),
although not produced to the Special Master, is privileged nonetheless.
	Although he does not state who gave him the Privileged Documents, the Court
Monitor states that he secured these documents "[p]ursuant to this Court's April 16, 2001 Order
and the Secretary of the Interior's April 24, 2001 subsequent direction in light of that Order that
the Court Monitorshould be provided 'access to any Interior offices or employees to gather
information necessary or proper to fulfill his duties."' Seventh Report at 68.
	The Seventh Report does not indicate that the Court Monitor obtained a knowing waiver
of privilege from anyone authorized to waive the privileges attached to these documents. Nor did
the Court Monitor afford the Interior Defendants an opportunity to be heard on any privilege
claims it had for these documents before publishing them with the Seventh Report. Indeed, the
Court Monitor does not state that he challenges the validity of the privileges asserted  he simply
disclosed the documents without addressing privilege questions.
Argument
I.	The Documents Are Privile2ed
	The six documents (which are described in the privilege logs (see Attachments A through
P to Interior's Response to the Seventh Report submitted to the Special Master) are covered by
-4-
<< COB0000007 >>
the attorney-client and work product privileges.2 To further establish the applicability of the
attorney-client privilege, the declaration of Larry Jensen is attached as Exhibit A. The letters
dated March 29, 2002 (Spooner to Jensen), March 25, 2002 (Miller to Jensen), March 20, 2002
(Miller to Jensen) and March 19, 2002 (Kessler to Jensen) are letters from Interior's litigation
counsel at DOJ to Larry Jensen, Counselor to the Solicitor of Interior, with copies to lawyers3
within Interior's Office of the Solicitor and/or to a senior Interior official, Deputy Secretary J.
Steven Griles.
	The Jensen Declaration ( 5-8) shows that the agency has made appropriate efforts to
preserve the confidentiality of the letters. After having been sent from DOJ attorneys to agency
counsel, the letters were further disseminated to agency officials who are responsible for their
respective components' production of documents, and, in that regard, act or speak on behalf of
their respective components, and thus for the agency with regard to their respective components'
searches for and production of documents responsive to the production requests that are the
subject of the letters. See Evans v. Atwood, 177 F.R.D. 1, 6 (D.D.C. 1997)("circulating truly
confidential information among concerned officials does not defeat the privilege since all the
recipients shared the attorney-client privilege with each other"); ~ ~ Mead Data Central. Inc.
v. United States Dep't of the Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977)("where the
client is an organization, the privilege extends to those communications between attorneys and
	2 date, neither the Court Monitor nor anyone else has argued that the privileges do not
apply. Should such a challenge be made, Interior should be given a further opportunity to
respond to the particulars of any objection to the privileges.
	~ All of the "cc~~ recipients of the letters dated March 25, 2002 (Sabrina McCarthy and
Richard Zeitler), March 20, 2002 (Sabrina McCarthy), and March 19, 2002 (Michelle Singer) are
attorneys within the Office of Solicitor, assigned to work on this case.
5-
<< COB0000008 >>
all agents or employees of the organization who are authorized to act or speak for the
organization in relation to the subject matter of the communication").
	The letters discuss responses to the Special Master's continuing requests for documents
in the context of this ongoing litigation.4 This case illustrates the observation that, "in practice it
is generally impossible to separate [communications from client to attorney] from the ones made
by the attorney to the client." A~j~ier 193 F.R.D. at 5, quoting In re Amnicillin Antitrust
Litigation, 81 F.R.D. 377, 388 n.20 (D.D.C. 1978). The court in In re Sealed Case, 737 F.2d at
101, found communications by an attorney to be privileged so long as they were "based, at least
in part" on confidential information previously disclosed to him. See also Upjohn Company v.
United States 449 U.S. 383, 390 (1981)(the attorney-client privilege "exists to protect not only
the giving of professional advice to those who can act on it but also the giving of infonnation to
the lawyer. .. .") (Emphasis added.)
	~ Case law in this circuit indicates that, to be covered by the attorney-client privilege,
communications from the lawyer to the client need "rest[] in significant and inseparable part on
the client's confidential disclosure." Alexandery. Federal Bureau of Investigation, 193 F.R.D. 1,
5 (D.D.C. 2000), quoting In re Sealed Case 737 F.2d 94, 99 (D.C. Cir. 1984). The March 29,
2002 and March 25, 2002 letters, for example, refer to and discuss information that DOJ learned
from Interior regarding its procedures for compliance with document production requests.
	Further, this is a case in which, because of its sheer magnitude and scope, the lawyers and
the client are in virtually constant communication with each other, the lawyers continually
receive information from the client, and the lawyers' advice and remarks to the client are
necessarily based upon and inexorably intertwined with, the confidential communications that
have taken place. Even letters which might not refer specifically to identifiable facts learned
from the client nevertheless are based upon such confidential communications, for these
determine in large part what the lawyers choose to say, how they say it, and what they emphasize,
thus implicitly revealing what has been discussed. ~, ~ Coastal States Gas Corn. v. Dep't of
Engergy, 617 F.2d 854, 862 (D.C. Cir. 1980)("the federal courts extend the privilege also to an
attorney's written communications to a client, to ensure against inadvertent disclosure, either
directly or by implication, of information which the client has previously provided to the
attorney's trust~).
-6-
<< COB0000009 >>
	The remaining two documents (the April 12, 2002 and April 24, 2002 memoranda,
respectively) are memoranda from officers within the Office of Special Trustee to lawyers within
Interior's Office of the Solicitor, providing information and seeking legal advice regarding
document production or other matters pertaining to the litigation. The recipients of the two
memoranda (the Solicitor and Larry Jensen) did not further disseminate them. Jensen
Declaration,  8.
	In addition to being covered by the attorney-client privilege, each of the documents was
prepared by the Interior Defendants' attorneys or officers (of the Office of Special Trustee) to
assist in Interior's defense of this litigation, so the documents are covered by the work product
doctrine.'
	Although the Court Monitor makes baseless allegations and innuendo of wrongdoing (see
Interior Defendants' Response to Seventh Report), he offers no facts or evidence that even
remotely support avoidance of the attorney-client privilege on that basis; mere speculation and
unfounded allegations cannot defeat the privilege. See In re Sealed Case, 107 F.3d 46, 50 (D.C.
Cir. 1997); Alexander v. Federal Bureau of Investigation. 192 F.R.D. 32, 36 (D.D.C. 2000).
II.	Interior Has Not Waived Its Privileges
A.	Production to the Special Master and/or the
Court Monitor Should Be Deemed "Compelled"
Production That Does Not Waive Privileges
	We are aware of only two persons outside of the Department of the Interior who might
have been given copies of the Privileged Documents (prior to the Court Monitoi3s filing of them
	~ $~, ~ Fed. R. Civ. P. 26(b)(3), which provides protection from disclosure for
"documents.. . prepared in anticipation of litigation or for trial by or for another party or by or
for that other party's representative. .
-7-
<< COB0000010 >>
as exhibits to the Seventh Report): The Special Master (to whom Interior, through DOJ,
formally and in camera produced five of the six documents) and, apparently, the Court Monitor.
But production to those persons does not waive the attorney-client privilege or the work product
doctrine. Production of documents to the Special Master and the Court Monitor is equivalent to
"court-compelled disclosure" that the D.C. Circuit has recognized is not the sort of voluntary
disclosure that waives the attorney-client privilege. In re Sealed Case, 877 F.2d 976, 980 (D.C.
Cir. 1 989)("Short of court-compelled disclosure, [citation omitted], or other equally
extraordinary circumstances, we will not distinguish between various degrees of 'voluntariness in
waivers of the attorney-client privilege").6
	The Special Master has indicated to Interior that his requests for documents are to be
treated as equivalent to orders under Fed. R. Civ. P. 53(c).7 Therefore, when he issued his March
29, 2002 request for all "instructions" issued by Interior, the Solicitor's Office and the DOJ
"seeking compliance" with his prior requests for documents relating to IT security, the OIiRM
move from Albuquerque to Reston, and the records move from Albuquerque to Lee's Summit,
Interior and its counsel were effectively "compelled" to produce documents including those
numbered 1 through 5 on the list at pages 2-3, ~
	6We are aware of the case law in this circuit that even inadvertent disclosures to opposing
counsel may waive the attorney-client privilege, ~, ~ In re Sealed Case, 877 F.2d at 980;
Wichita Land & Cattle Co. v. American Federal Babk, 148 F.R.D. 456, 458 (D.D.C. 1992), but,
for the reasons discussed herein, that principle should not be applied to the production of
information to the Court Monitor or Special Master, who act as judicially appointed officers
rather than an opposing litigant, and to whom disclosure should be treated as "court-compelled."
	~ See, ~ letter dated March 4, 2002, from Alan Balaran to DOJ attorney Peter Miller
(Attachment 1 to the portion of Interior's Response to the Seventh Report that was submitted to
be filed under seal on May 16, 2002); ~ ~ April 26, 2002, from DOJ attorney Anialia Kessler
to Special Master Alan Balaran (Attachment D to Interior's Response to the Seventh Report).
-8-
<< COB0000011 >>
	But the Special Master agreed that documents as to which Interior claims privilege would
be viewed only in camera, and that such documents would not be produced or made public
without Defendants first having an opportunity to seek a final ruling on the applicability of the
claimed privileges. See letter dated February 7, 2002, from Alan Balaran to DOJ attorney Peter
Miller (included at Tab 13 of the Seventh Report); ~ gj~ each of the letters from DOJ attorneys
to Alan Balaran, within Attachments A through B to Interior's Response to the Seventh Report.
Interior thus asserted its claim of privilege by submitting privilege logs specifically identifying
those documents. Therefore, production of the Privileged Documents to the Special Master did
not waive any privilege.
	The Court Monitor did not submit any similar requests to Interior's counsel for production
of such documents. We do not know whether an Interior employee, acting on his own might
have given copies of the Privileged Documents to the Court Monitor. But, assuming for the sake
of argument that occurred, such disclosure to the Court Monitor should not be deemed a waiver
of applicable privileges. While the Court Monitor's requests (whether formal or otherwise) are
not equivalent to an order, this Court previously ordered Interior to "facilitate and assist Mr.
 Kieffer in the execution of his duties and responsibilities" and to provide him "with access to any
Interior offices or employees to gather information necessary or proper to flilfill his duties." See
Order dated April 16, 2001 at 2 ( 4). In light of the Court's direction to "facilitate and assist"
the Court Monitor, and to provide him "access," any disclosure of privileged information to him
should be treated as an in camera disclosure to the Court that does not waive privileges.
Although the Court Monitor lacks authority to conduct discovery or otherwise require production
of evidence, materials voluntarily turned over to him nevertheless should be treated as "court-
-9-
<< COB0000012 >>
compelled" for purposes of analyzing privileges because of the breadth of the "access" given him
by the Court's order.
	In Securities and Exchange Comm'n v. Lavin,. 111 F.3d 921, 932 (D.C. Cir. 1997), an
employer produced to a Federal Reserve Bank tape recordings of an employee's phone calls, not
even pursuant to a subpoena (let alone a court order), but merely "in response to the Federal
Reserve's exercise of its examination powers" regarding banks. The employee had informed the
employer that the employee asserted the marital privilege, and the employer thus asserted that
privilege on the employee's behalf. Id. at 933. In a later investigation by the SEC, the SEC
claimed that release of the tapes to the Federal Reserve Bank was a waiver of the privilege. The
D.C. Circuit, however, held that disclosure to the Federal Reserve Bank pursuant to its
"examination powers" did not constitute a waiver of the employee's marital privilege, and thus,
the court refused to order production of the privileged tapes to the SEC. Id. at 932.
	Similarly in this case, this Court has conferred broad monitoring authority upon the Court
Monitor. Once Interior learned that the Court Monitor possessed and publicly disclosed the
Privileged Documents, Interior objected and asserted the privileges (i.e. in its Response to the
Seventh Report). Thus, disclosure, if any, to the Court Monitor should not be deemed a waiver
of privilege. At a minimum, the Court Monitor at least should have avoided further disclosure of
any obviously privileged materials (and each of the Privileged Documents is, on its face, a
privileged communication between client and counsel) until Interior was given notice and an
opportunity to obtain a final ruling on the applicability of privileges.
	Even if any employees of the Department of the Interior who produced the documents
had wanted to waive privileges, it is doubtful that the privilege could be waived in the context of
-10-
<< COB0000013 >>
ongoing litigation without consent of the Department of Justice (which gave no such consent)
because, pursuant to 28 U.S.C.  516, the Department of Justice has exclusive authority to
conduct the litigation.8
	Further, even if an employee of Interior had authority to waive the attorney-client
privilege, that would not waive the work product privilege. In re Sealed Case 676 F.2d 793, 809
(D.C. Cir. I 982)("the work product privilege is not automatically waived by any disclosure to a
third party"); see also Permian Coro. v. United States, 665 F.2d 1214, 1222 (D.C. Cir.
198 1)(even though production of documents to SEC waived attorney-client privilege, that did not
waive the work-product doctrine as to those documents). DOJ has a separate right to claim the
work product privilege which no one at Interior can waive, at least with regard to the Privileged
Documents generated by DOJ attorneys. In re Sealed Case. 676 F.2d at 809 n.56 ("[t]o the extent
that the interests do not conflict, attorneys should be entitled to claim [work producti privilege
even if their clients have relinquished their claims").
	Although an attorneys production of documents to his opponent may waive the work
product protection, that principle should not apply here. In In re Subooenas Duces Tecum 738
F.2d 1367, 1372 (D.C. Cir. 1984), the court held that voluntary production to the SEC waived the
work product protection because, under the circumstances, the SEC was an "opponent," the
disclosing party had no reasonable basis to believe that the materials would be kept confidential,
and waiver under those circumstances would not "trench on any policy elements now inherent in
	~ 28 U.S.C.  516 provides, "fe]xcept as otherwise authorized bylaw, the conduct of
litigation in which the United States, an agency, or officer thereof is a party, or is interested, and
securing evidence therefor, is reserved to officers of the Department of Justice, under the
direction of the Attorney General."
11
<< COB0000014 >>
this privilege." In finding that the SEC was an "opponent," the court noted that the documents
were produced under a program in which the SEC would impose reduced punishment for
violations that it found in voluntarily produced documents. Id. Thus, the court observed, it
would be unfair to allow a litigant to gain an advantage by disclosing work product to one
opposing litigant (in that case, the SEC), while denying other opposing litigants access to the
same documents. Id.
	But production of materials to the Court Monitor, if that occurred, is different. The
Court's order appointing the Court Monitor does not cast him in the role of an opponent, but
rather as a judicially appointed official who is to "monitor and review" trust reform activities.9
The Court Monitor thus stands on a different footing from the Govermnent's opposing litigants or
the public. If an Interior employee determined, correctly or incorrectly, that the Court Monitor
was entitled to the documents to carry out his duties, that is not equivalent to a party's selective
disclosure to certain of its opposing litigants to gain an advantage, as occurred in In re Subpoenas
Duces Tecum.
	Interior can justifiably expect that the Court Monitor will respect its privileges on
documents that he obtains. Had the Court Monitor asked for production of the documents he
sought, Interior could have insisted upon the same assurances of in camera confidentiality as the
Special Master afforded. Such a process provides a fair opportunity to decide deliberately
whether to assert privileges and, if necessary, to defend them. Under such circumstances,
fairness dictates that Interior's privileges should be deemed to remain in effect unless and until
they have been overruled after notice and an opportunity to have the claims of privilege heard.
	~ See Order dated April 15, 2002, at 2.
- 12 -
<< COB0000015 >>
III.	Interior's Privileges Were Not Waived by the
Court Monitor's Filing of the Privileged Documents,
Nor by Any Other Disclosure by the Court Monitor
	Although the Court Monitor inappropriately attached the Privileged Documents to his
Seventh Report and discussed them in the text, neither that nor any other disclosures by the Court
Monitor effected a waiver of Interior's privileges. Disclosure by third parties  especially
Governmental entities that acquire the information under their legal authority to collect it  does
not waive the privilege of the entity that supplied it. Thus, for example, in Nat'l Wildlife
Federation v. Environmental Protection Agency. 286 F.3d 554, 575-76 (D.C. Cir. 2002), EPA,
pursuant to its statutory authority, collected certain confidential business information about
private industry. In a later suit by environmental organizations challenging EPA rules, the court
refused to order EPA to produce the confidential industry information. Later, EPA inadvertently
produced some of the confidential information to one of the plaintiffs. The court held that such
disclosure by a third party (EPA) did not constitute a waiver of the industry's privilege. I~.
Similarly, the Court Monitor's disclosure of the Privileged Documents, occurring outside the
control of Interior, should not be deemed a waiver of Interior's privileges.
Relief Requested
	Although it is difficult to "put the genie back in the bottle," the Court can fashion a
remedy that will fairly protect Interior's privileges. First, the copies of the Privileged Documents
attached to the Court Monitor's Seventh Report filed with the Court should be removed from the
record, returned to Interior, and deemed stricken from the record. Second, the portions of the
Seventh Report that disclose or discuss the content of the Privileged Documents, kg., pages 66 et
sea., should be stricken. Third, the Court Monitor, Plaintiffs, and Plaintiffs' attorneys should be
-13-
<< COB0000016 >>
required to return all copies of the Privileged Documents to Interior. Fourth, publication or use
of the Privileged Documents in any way should be barred, absent express consent by the
Government or an order from the Court, after Interior has been given notice and an opportunity to
litigate the validity of the privileges, that such documents may be used.
Conclusion
	For the reasons stated, Interior Defendants respectfully request that the Court enter an
order as described above, and provide them such other and further relief as may be appropriate.
Respectfully submitted,
ROBERT D. McCALLUM
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
3.	CHRISTOPHER KOHN
Director
SANDRA P. SPOONER
Deputy Director
JOHN T. STEMPLEWICZ
Senior Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
-14-
<< COB0000017 >>
CERTifICATE OF SERVICE
	I declare under penalty of perjury that, on May 31, 2002 1 served the Foregoing Interior
Defendants 'Memorandum c/Points and Authorities in Support of Motion for Protective Order
Regarding Privileged Documents Referenced in the Seventh Report c/the Court Monitor, by
facsimile 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, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
by Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
by U.S. Mail upon:
Elliott Levitas, Esq:
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Courtesy Copy by U.S Mail:
Joseph S. Kieffer, III
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004
Sean P. Schmergel
<< COB0000018 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	V.	)	CaseNo. 1:96CV01285
	)	(Judge Lamberth)
GALE NORTON, Secretary of the Interior al.,	)
	)
Defendants.	)
PROTECTIVE ORDER REGARDING
PRIVILEGED DOCUMENTS REFERENCED IN
TIlE SEVENTH REPORT OF THE COURT MONITOR
This matter coming before the Court on Interior's Defendants' Motion for Protective
Order Regarding Privileged Documents Referenced in the Seventh Report of the Court Monitor
("Seventh Report"), and any responses thereto, the Court finds that the Motion should be
GRANTED. The Court finds that the following documents identified in the Motion are and
remain protected by the attorney-client privilege and the work product doctrine:
1.	March 29, 2002 letter from Sandra P. Spooner, Deputy Director, Department of
Justice ("DOJ"), to Larry Jensen, Counselor to the Solicitor, Department of the
Interior transmitting and discussing recent Special Master requests and attaching
certain prior letters from DOJ (produced to Special Master as SMREQOOO2 156-P
through SMRBQOOO2I6O-P), attached to Seventh Report at Tab 13;
2.	March 25, 2002 letter and revised draft supplemental search memorandum for
Special Master's February 7, 2002 request (as clarified on March 8, 2002)
regarding the QIRM move from Peter B. Miller, Trial Attorney, DOJ, to Larry
Jensen, Counselor to the Solicitor, Department of the Interior (produced to
Special Master as SMREQOOO2167-P through SMREQOOO2172-P), attached to
Seventh Report at Tab 13;
3.	March 20, 2002 letter from Peter B. Miller, Trial Attorney, DOJ, to Larry Jensen,
Counselor to the Solicitor, Department of the Interior transmitting and discussing
I
<< COB0000019 >>
Special Master's March 20, 2002 request regarding IT security (produced to
Special Master as SMREQOOO2 1 80-P), attached to Seventh Report at Tab 13.
4.	April 12, 2002 memorandum from Thomas Slonaker, Special Trustee, to William
Myers, Solicitor, DOI, discussing legal advice received by the Office of the
Special Trustee concerning its document production in response to the Special
Master's 3/19102 request regarding the Lee's Summit records transfer and quoting
and transmitting the 3/19/02 letter from the DOJ to the Office of the Solicitor
transmitting and discussing the Special Master's 3/19/02 request (produced to
Special Master as SMREQOOO261O-P through SMREQOO02614-P); unnumbered
copies are attached to Seventh Report at Tab 16.
5.	March 19, 2002 letter from Amalia B. Kessler, Trial Attorney, DOJ, to Larry
Jensen, Counselor to the Solicitor, Department of the Interior transmitting and
discussing Special Master's 3/19/02 request regarding Lee's Summit records
transfer (produced to Special Master as SMREQOOO 1357-P through
SMREQOOO1358-P and as SMREQOOO26I3-P through SMIREQOOO26I4-P);
unnumbered copy of the letter is attached to Seventh Report at Tab 16.
6.	April 24,2002 memorandum from Thomas Thompson, Principal Deputy Special
Trustee, Department of the Interior, to William Myers, Solicitor, Department of
the Interior and Larry Jensen, Counselor to the Solicitor, through Tom Slonaker,
Special Trustee, Department of the Interior discussing March 29, 2002 letter from
Sandra Spooner, DOJ, to Larry Jensen, attached to Seventh Report at Tab 12 and
Tab 16.
	IT IS THEREFORE ORDERED that the Clerk of the Court shall remove the above-listed
documents from the original and all copies of the Seventh Report of the Court Monitor, filed on
May 2, 2002, the Clerk shall turn over such documents to Interior, and such documents shall be
deemed stricken from the record of this case;
	FURTHER ORDERED that the Court Monitor shall identify to the Court all parts and
passages in the Seventh Report in which he disclosed or discussed the contents of the above-
listed documents, and all such parts and passages of the Seventh Report shall be deemed stricken
from the record;
	FURTHER ORDERED that the Court Monitor, Plaintiffs, and Plaintiffs' attorneys shall
-2-
<< COB0000020 >>
return to Interior all copies of the above-listed documents that are in their possession, custody or
control;
	FURTHER ORDERED that the above-listed documcnts shall not be disclosed or used
without prior express permission of Interior or prior authorization by this Court.
	SO ORDERED this _____ day of	, 2002.
	ROYCE C. LAMIBERTH
United States District Judge
-3-
<< COB0000021 >>
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
-4-
<< COB0000022 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on May 31, 2002 I served the Foregoing Interior
Defendants 'Motion for Protective Order Regarding Privileged Documents Referenced in the
Seventh Report of the Court Monitor, by facsimile in accordance with their written request of
October31, 2001 upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
by Facsimile and U.S. Mail:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Courtesy Copy by U.S Mail:
Joseph S. Kieffer, III
Court Monitor
420 - 7~ Street, N.W.
Apartment 705
Washington, D.C. 20004
~EzZZILz
Sean P. Sebmergel