'
                                                                                                                                                                                                            i    ;       _ ,         !-.._  t      _.._;_

                                                                                                IN THE UNITED STATES DISTRICT COURT
                                                 FOR THE DISTRICT OF COLUMBIA   :': --"_;  f-?i  7': :5_!.
                                                                                            7.!    _  '
                                                                                                                                                                                                                       .';;_*,  :l_ TM   _ ! -*_ -i_ C_ _ 1

                                 ELOUISE PEPION COBELL, et al..___:.,                   )                       ,,:___,,=,:-_r::. ,-
                                                                             )
                  Plaintiffs,                                          )
                                                                             )
                  v.                                                   )       Case No. 1:96CV01285
                                                                             )       (Judge Lamberth)
              GALE A. NORTON, Secretary of the Interior, et al___:., )
                                                                             )
                  Defendants.                                       )
                                                                             )
                                  INTERIOR DEFENDANTS' REPLY BRIEF IN                                            !
                               SUPPORT OF MOTION FOR RECONSIDERATION OF ORDER                                _
                               PROHIBITING COMMUNICATIONS WITH CLASS MEMBERS
                       Plainti frs' opposition to Interior Defendants' Motion for Reconsideration of Order
              Prohibiting Communications with Class Members ("Motion for Reconsideration") sets forth a
              broad range of objections, generally supported by inconsistent, confusing, factually dubious, and
              vitriolic assertions. _ A reasoned review of the Motion for Reconsideration, however, confirms
              that it is both brought properly before the Court and raises issues regarding the Court's Order
              filed on December 23, 2002, pursuant to Rule 23(d), (the "Rule 23(d) Order") which require
              reconsideration by the Court.





                               On January 30, 2003, Interior Defendants filed their Motion To Strike Plaintiffs'
             Untimely Filings, and plaintiffs' brief in opposition to the Motion for Reconsideration is among
             the untimely pleadings included within the scope of the motion to strike. Pursuant to Local Civil
             Rule 7.1 (b), because plainti frs' opposing motion was "not filed within the prescribed time, the
             court may treat the motion as conceded."
                                                                    -  1  -




                            I.       Interior Defendants' Motion for Reconsideration Is Properly Before
                                  This Court
                         Plaintiffs initially attack Interior Defendants' decision to bring the Motion for
                 Reconsideration before tile Court pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
                While Interior Defendants believe that the Court's Rule 23(d) Order is properly the subject of a
                Rule 59(e) motion, even if the Court were to conclude otherwise, the issues raised by the Motion
                for Reconsideration are properly before the Court. As this Court recently recognized:
                                  District courts have broad discretion to grant or deny a motion for
                                  reconsideration. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
                                  233-34, 115 S. Ct. 1447, 131 L.Ed.2d 328 (1995); see also
                                  Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864,
                                  108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The court may invoke its
                                  discretion and deny such a motion unless it finds an intervening
                                  change in controlling law, the availability of new evidence, or the
                                 need to correct clear error or manifest injustice. McDonnell
                                 Douglas Corp. v. NASA, 109 F. Supp. 2d 27, 28 (D.D.C. 2000);
                                 see also Firestone v. Firestone, 76 F.3d 1205, 1206 (D.C.Cir. 1996);
                                 EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th
                                 Cir. 1997).
                Cobell v. Norton, 226 F. Supp. 2d 175, 177 (2002). Notwithstanding plaintiffs' insupportable
               and erroneous assertion that the filing of the Motion for Reconsideration pursuant to Rule 59(e)
               was undertaken for a broad range of allegedly improper reasons, Plaintiffs' Opposing Brief ("PI.
               Br.) at 1, 14-15, this Court retains the jurisdiction to reconsider any order until the order becomes
               final. Contrary to plaintiffs' assertions - and consistent with this Court's above-quoted recent
               statement - this Court retains broad discretion to consider and rule upon Interior Defendants'
               Motion for Reconsideration.





                                                                     -2-




                           Ii.      Plaintiffs' "Factual Background" Section is Fraught With Gross
                                  Misrepresentations and Mischaracterizations to Continue Their
                                  Indiscriminate Pattern of Defaming Government Officials
                         The Goven_nent recognizes that litigants can have widely disparate points of view; this is
                the origin of disputes and, often, litigation. That being said, the record of this case more than
                amply confirms that plaintiffs' approach to this litigation relies upon indiscriminate charges
                against virtually any Government official who becomes involved in this matter. Such a pattern -

                unsupported by facts or substance and directed toward virtually any action undertaken by the
                Government - does not simply fly in the face of the judicial presumption that Govennnent
                officials are presumed to act in good faith, .e.g., Marine Shale Processors, Inc. v. EPA, 81 F.3d
                1371, 1385 (5th Cir. 1996) ("well-nigh irrefragable proof" required to rebut legal presumption
                that government officials act in good faith); Kalvar Corp. v. United States, 543 F.2d 1298, 1301-
                02 (Ct. Cl. 1976) (same), cert. denied, 434 U.S. 830 (1977); China Trade Center, L.L.C.v.
                Washington Metropolitan Area Transit Authority, 34 F. Supp. 2d 67, 70-71 (1999), aft'd, 1999
               WL 615078 (D.C. Cir. July 2, 1999); it defies common sense.
                        A review of the "factual" background in plaintiffs' opposing brief highlights the lack of
               substance in their a!legation that, in essence, every Government official involved in the mailing
               of the historical account statements misrepresented facts, acted unethically, and concealed
               information. Pl. Br. at 2-11. Plaintiffs initially mischaracterize and propound insupportable
               allegations in describing the procedural history leading to the Court's Rule 23(d) Order. Contrary
               to plaintiffs' assertion, Pl. Br. at 2 and 10, no basis exists for their claim that Interior Defendants
               "falsely" represented that historical account statements had been cornpleted for approximately
               7,900 IIM accounts. In fact, the only basis for this charge is buried in footnote 15 of plaintiffs'

                                                                      -3-





                  brief, in which plaintiffs simply rely upon their arguments regarding work conducted
                 approximately one year earlier. Plaintiffs' groundless allegation is wholly divorced from any
                 facts that existed in September 2002.
                         Plaintiffs proceed to argue, repeatedly, that the Government "concealed" from plaintiffs
                 and the Court the notice contained in the historical account statements. Pl. Br. at 2 n.4, 9, 9-10
                n. 14. The critical fact missing from plaintiffs' irresponsible charge of concealment, however, is
                that Interior Defendants' initial motion, filed on September 10, 2002, asked the Court for an
                order, pursuant to the Privacy Act, pemlitting disclosure to plaintiffs' counsel. Interior
                Defendants' Motion and Supporting Memorandum for Order Permitting the Provision of Copies
                of Historical Statements of Account to Class Counsel (filed Sept. 10, 2002). Interior Defendants
                affirmatively acted to disclose the information to plaintiffs' counsel, and the only barrier was
                plaintiffs' opposition to Interior Defendants' Privacy Act motion.
                         Plaintiffs proceed to argue that the Government's decision to provide historical account
                statements to account holders 2 was part of a scheme to evade Rule 4.2(a) of the Model Rules of
                Professional Conduct. Pl. Br. at 4-7. In support of this erroneous assertion, plaintiffs rely
                largely upon selected and mischaracterized excerpts from the deposition of Mr. Bert Edwards and
                statements of counsel in this matter. For example, plaintiffs claim Mr. Edwards' testimony


                        2        Consistent with their design to portray the Government as comprised of evil
                people intent on taking advantage of beneficiaries, the plaintiffs repeatedly state that Interior
                Defendants provided the statements to "juveniles" and "children." Pl. Br. at 4, 5-6 n.8, 7.
                Plaintiffs even argue, at one point, that "the targets are unsuspecting children." Pl. Br. at 10 n. 16.
                In fact, the statements were not provided to children, but were provided to the parents and
                guardians of the beneficiaries, a fact recognized by this Court during the November 1, 2002
               hearing and unquestionably known by plaintiffs' counsel. Tr. 37:14-38:9. See also Deposition
               Testimony of Bert Edwards (Dec. 18, 2002) (Tr. 28:22-29:5) (attached as Exhibit A).
                                                                      -4-




                  confirmed "that 15 officials from Interior and Justice met frequently on these matters [regarding
                 direct communications with class members] and that this group was in agreement on the
                 language of the communications as well as the decision to send such information to 1,200
                juvenile class members without the approval of this Court." Pl. Br. at 4 n.4 (emphasis in
                original) (citing Edwards Depo. Tr. at 28-31 (Dec. 18, 2002)). Plaintiffs failed to attach the
                transcript to their opposing brief, however, for one obvious reason: Mr. Edwards' testimony,
                unencumbered by plaintiffs' selective edits and mischaracterizations, does not support plaintiffs'
                argument. We have attached pages 28-31 of Mr. Edwards' deposition transcript to this brief, and
                a review of those pages confirms that Mr. Edwards' testimony stated nothing about the Court's
                role with regard to the statements to be provided. See Exhibit A to Reply Brief ("Ex. A.").
                Simply put, plaintiffs' entire discussion about Government counsel's allegedly unethical conduct
                is, in fact, premised upon a misrepresentation of Mr. Edwards' testimony, and Mr. Edwards'
                testimony hardly "demonstrates decisively" that Government counsel engaged in unethical
                behavior. Pl. Br. at 3-7. 3

                        Mr. Edwards also testified, in the pages relied upon by plaintiffs, that the statements were
                sent only to parentsand guardians, not juveniles. Ex. A (Tr. 28:22-29:5). As is explained above
                in footnote 2, this fact has been repeatedly mischaracterized within plaintiffs' opposing brief.


                        3        It is plainly unremarkable that Mr. Edwards confirmed that disregarding the legal
               advice of Interior Department's Solicitor's Office would require "pretty good reasons" or that
               disregarding the Solicitor's advice would cause Mr. Edwards to act "at some peril." Pl. Br. at 4
               n.7 (partially quoting Edwards Dcpo. Tr. 294:7-12). Ill an attempt to make Mr. Edwards'
               testimony more supportive of their position, however, plaintiffs omitted a portion of the question
               from their quotation in their footnote 7. Lq fact, the full question asked "Are you free to disregard
               the Solicitor's advice .with regard to the preparation of?ur plan?" Edwards Depo. Tr. 294:7-8
               (omitted language emphasized). In that full context, Mr. Edwards' response is clearly reasonable.
                                                                      -5-




                            Plaintiffs' mischaracterizations of Government counsel's staternents during the November
                 1, 2002 hearing are equally unfounded. Pl. Br. at 5-6 n.8. Contrary to plaintiffs' assertions, a
                review of the transcript confirms that Government counsel's statements regarding the appellate
                rights of account holders was restricted to the administrative process. See Tr. 6:15-8:6. In fact,
                the following exchange took place during the hearing:
                                  THE COURT: I understand, but nobody is losing any rights with
                                  those statements.
                                  MR. SELIGMAN: Well, there is no definitive loss of any rights
                                  with these statements. The only-
                                  THE COURT: I thought the regulation said, if you don't appeal in
                                                                                                                                                  !
                                                                          60 days you lose all your rights?
                                  MR. SELIGMAN: Well, they may lose -- there can be an
                                  argument later about which rights they have lost. Of course there
                                  is a -- there is a -- the case has been proceeding for six years now
                                 before you, and if anybody wishes to challenge the accounting
                                 that's in that statement that's sent out to them, they certainly are --
                                 they are represented by counsel, and they can go to their counsel
                                 and they can -- they can eventually raise the issue before you,
                                 which I assumed was going to be at some later -
                Tr. 7:17-8:6. Contrary to plaintiffs' assertion, Government counsel never stated that Interior
                Defendants intended to attempt to terminate class rights through the provision of the historical
                account statements. For similar reasons and the reasons set forth in the Motion for
               Reconsideration at 8-11, this Court should reject plaintiffs' argument that Interior Defendants
               "improperly attempt to eat their cake and have it too." See Pl. Br. at 16-17. 4

                        4        We also note that in their opposition, plaintiffs take the wholly inconsistent
               position of attacking the Government's assertion regarding the legal import of the notice in the
               historical account statements while, at the same tirne, "not[ing] that plaintiffs are in agreement
               with the implicit premise of the Interior defendants and their counsel in this phase of the
               argument: that in the absence ora decision from this Court, no rights ora single member of the
                                                                      -6-




                            Plaintiffs argue that the historical account statements were not made in the regular course
                 of business, but rather than addressing whether the statements were, in fact, products of the
                 Interior Department's statutory responsibilities, plaintiffs argue that "there is n___o 'regular course of
                business' other than malfeasance, misfeasance and nonfeasance regard the Individual Indian
                trust." Pl. Br. at 8 n. 10. 5 Plaintiffs then attack the Government's assertion that the
                communications from the Interior Department's Office of Historical Trust Account COHTA")
                were not communications by counsel, concluding with the ad hominem attack that
                                  [D]efendants and their counsel have placed themselves in the
                                  unenviable but classic position of an inveterate prevaricator- to
                                  whom the only relevant question is: "Are you lying now.., or
                                  were you lying then?"
                Pl. Br. at 8 n.11. These are not legal arguments. Rather, they are simply more of the sort of
                rhetoric - wholly lacking in the civility required of litigants in this Court - which poisons the
                atmosphere of this litigation. See generally D.C. Bar Voluntary Standards for Civility in
                Professional Conduct, quoted in Alexander v. FBI, 1999 WL 314170 (D.D.C. May 17, 1999).
                        Finally, plaintiffs attack thc statement in the Motion for Reconsideration, that "Interior
                has relied upon the Court's statements allowing day-to-day communications that the agency
               would otherwise be making independent of the litigation as a limitation on such a broad
               construction." Motion for Reconsideration at 7. Rather than cite a relevant example supportive


               Cobell class may be terminated." Pl. Br. at 6 n.8 (emphasis in original).
                        5        Plaintiffs' challenge regarding the Secretary's duty to provide historical account
               statements is equally pernicious. Pl. Br. at 10 and n. 16. Rather than addressing the Secretary's
               legal duties, plaintiffs allege that the actions "are never taken by a fit trustee-delegate" and that
               the Secretary's actions - directed at "unsuspecting children" - constitute either "actual fraud" or
               "constructive fraud." Pl. Br. n.16. See also footnote 2, above.
                                                                      -7-




                  of their attack - undoubtedly for lack of such an example - plaintiffs cite a wholly irrelevant
                 communication between Government counsel and the Special Master-Monitor. Pl. Br. at 11
                 n.17. Their purpose in citing this communication is transparently unrelated to the motion before
                this Court.
                         III.     Counsel for the Parties Did, In Fact, Meet and Confer Pursuant to
                                  Local Civil Rule 7.1 (m)
                         Contrary to plaintiffs' initial assertions, Pl. Br. at 15 n.24 and 22 n.34, counsel for the
                Government did have a telephonic conversation with plaintiffs' counsel, pursuant to Local Civil
                Rule 7. l(m), prior to filing the Motion for Reconsideration. Moreover, contrary to the initial
                                                                                                                                                  i
            statement in footnote 24 of plaintiffs' opposing brief, the meet-and-confer discussion was
                specifically referenced in the first paragraph of the Motion to Reconsideration. Compare Pl. Br.
                at 15 n.24 with Motion for Reconsideration at 1.
                         On January 30, 2003, plaintiffs filed their "Notice of Errata re Plaintiffs' Opposition to
                Interior Defendants' Motion for Reconsideration of Order Prohibiting Communications With
                Class Members" ("Notice of Errata"). Plaintiffs' Notice of Errata was filed following discussion
                and correspondence between counsel for the parties, which commenced with a letter from
                Government counsel to plaintiffs' counsel on January 24, 2003, the date plaintiffs' opposing brief
                actually was sent to Government counsel. Ex. B (letter from J. Warshawsky to D. Gingold dated
               January 24, 2003). During the course of those discussions, Government counsel advised
               plaintiffs' counsel that he was confident he advised plaintiffs' counsel fully regarding the relief to
               be sought in the Motion for Reconsideration. 6

                        6        Govermnent counsel's signature at the conclusion of this pleading serves as
               certification of the facts asserted in this section of the reply brief.
                                                                      -8-




                            The Notice of Errata states that "Plaintiffs can recall no meet and confer conducted by
                 defendants with respect to the second separate order sought, namely 'that the Court's referral of
                 government attorneys for disciplinary investigation set forth in the Rule 23(d) order is
                 rescinded.'" Notice of Errata at 1-2. The Government, of course, cannot address whether
                 plaintiffs' counsel lacks recollection of such a conference - and we do not dispute plaintiffs'
                 counsel's assertion regarding his mental state. As noted above, however, Government counsel is
                confident that both elements of the proposed order were discussed during the Local Civil Rule
                7.1(m) conference on January 8, 2003.
                         While the Government disputes that its counsel participated in what the Notice of Errata
                refers to as "unconstructive bickering on this point," Notice of Errata at 2, 7 in light of plaintiffs'
                statement that "plaintiffs prefer that this Court deny defendants' motion on the merits," id.,
                Interior Defendants assume plaintiffs' Local Civil Rule 7.1 (m) arguments have been rendered
                moot by plaintiffs' subsequently filed Notice of Errata?
                        III.     This Court Should Reject Plaintiffs' Request for a "Broad Order"
                                 Requiring the Submission of "All Non-Routine Communications
                                 With Class Members to the Court and to Plaintiffs for Prior
                                 Approval"
                                      ,f
                                             Plaintiffs' brief argues, at length, regarding the clarity of the Court's Rule 23(d) Order and

                        7       In fact, as noted above, plaintiffs' errors in their opposing brief were only brought
               to the Court's attention following discussions initiated by Government counsel. See Ex. B.
               Consequently, the discussions were constructive in clarifying at least some of the facts preceding
               the filing of the Motion for Reconsideration.
                                 In the event tile Court wishes to consider tile merits of plaintiflk' allegations
               regarding tile Government's compliance with Local Civil Rule 7.1 (m), tile undersigned
               Government counsel is willing to further supplement this pleading to satisfy the Court that, in
               fact, there was a legally sufficient meet-and-confer discussion prior to the filing of the Motion for
               Reconsideration.
                                                                     -9-





                   concludes by asking, without the submission of a proper motion, for a "broad order" requiring the
                 submission of "all non-routine communications with class members to the court and to plaintiffs
                 for prior approval." Pl. Br. 18-22. The Court should reject plaintiffs' request, if for no other
                 reason, because it has not been brought before the Court ttn:ough a motion complying with the
                 Court's rules. E.g,, Local Civil Rule 7.1 (a) (setting forth requirements for motions) and 7.1 (c)
                 (requiring motions to accompanied by a proposed order).
                         Moreover, plaintiffs' opposing brief provides no justification for the entry of such a broad
                 order. Plaintiffs attack the Government for suggesting that the Rule 23(d) Order arguably could
                be interpreted as barring plaintiffs' counsel from communicating with members of the class. Pl.
                Br. at 18. In asking for the Court's confirmation regarding Interior's understanding of the Rule
                23(d) Order, the Motion for Reconsideration did note that "a broad construction of the Court's
                order would arguably preclude Interior officials, their agents, and even plaintiffs' counsel, from
                communicating with class members .... "Motion for Reconsideration at 7. This is because the
                Rule 23(d) Order prohibits certain communications by "parties to the litigation, their agents and
                officials, and their counsel" Rule 23(d) Order at 18-19, and plaintiffs and their counsel certainly
                fall within the literal scope of this language.
                         A reasoned reading of the Motion for Reconsideration simply confirms that Interior
                Defendants raised the breadth of the Rule 23(d) Order in the context of providing the Court and
                plaintiffs' counsel with notice regarding Interior's "reasonable" interpretation of the Court's order.
                Motion for Reconsideration at 7-8. It was not intended to suggest that the Rule 23(d) Order
                should be construed to bar plaintiffs' counsel's contact with class members; it merely sought
                guidance if, in fact, the Interior Department should construe the Rule 23(d) Order more narrowly.

                                                                     -10-





                            IV.     This Court Should Withdraw Its Reference of Justice Department
                                  Attorneys for Disciplinary Investigation
                         Plaintiffs offer two challenges to the Government's request that the Court withdraw its
                referral of Justice Department attorneys for disciplinary investigation, initially, plaintiffs argue
                that the Government lacks "standing" to seek such relief, Pl. Br. at 11-13, but plaintiffs' argument
                simply misapplies the concept of legal standing. Interior Defendants - the movants in the
                Motion for Reconsideration - are already parties to this litigation, and as such, they possess
                standing to ask this Court to reconsider any of its rulings. Moreover, none of the cases relied
                upon by plaintiffs support the notion that the Interior Defendants lack standing to ask that this
                Court reconsider its prior order of referral. 9 While plaintiffs' arguments would have arguable
                relevance if Interior Defendants pursued dismissal of the disciplinary proceedings in a motion
                brought before the Court's Disciplinary Committee, their arguments are plainly inapposite here.
                         In their opposition to the Government's request for reconsideration of the referral order,
                plaintiffs attempt, at length, to distinguish two cases cited in the Motion for Reconsideration. Pl.
                Br. at 22-27. As is explained below, neither purportcd distinction is persuasive.
                        Plaintiffs argue that the Motion for Reconsideration sets forth "a gross distortion" of the


                        9        Plaintiffs principally rely upon three cases, all of which are similarly
               distinguishable. In Mattice v. Meyer, 353 F2d 316 (8th Cir. 1965), the court simply held that a
               private citizen lacked standing to initiate disbarment proceedings in federal district court. The
               citizen could provide information to the court for the court's consideration, but the citizen could
               not prosecute the disbarment action. In Colon v. United States Attorney, 576 F.2d 1 (lst Cir.
                1978), the court similarly distinguished the right of a citizen to complain to a court from standing
               to prosecute a disciplinary action. Finally, in In re Teitelbaum, 253 F.2d 1 (7th Cir. 1958), the
               court held that the a United States Attorney who unsuccessfully sought disbarment of an attorney
               lacked standing to file a notice of appeal. Again, the court relied upon the distinction between
               the United States Attorney's status as an infonner and his lack of standing to prosecute an appeal
               following the denial of the disbarment request.
                                                                     -11-





                  holding in United States v. Lemonakis, 485 F.2d 941,956 (D.C. Cir. 1973), cert. denied, 415

                U.S. 989 (1974). Pl. Br. at 23. In so doing, plaintiffs assert -wrongly- that the Motion for
                Reconsideration "implies that the case turns on" the "alter ego" discussion ill Lemonakis. Id.
                         In fact, the Motion for Reconsideration cited Lemonakis for the proposition that "the D.C.
                Circuit has made clear that an attorney is not responsible for communications made by another
                unless that person is acting as the attorney's 'alter ego,'" Motion for Reconsideration at 12, and
                the Lemonakis Court could not have been clearer in relying upon the alter ego distinction in

                finding that "there was no ethical breach by the U.S. Attorneys prosecuting the case." 485 F.2d

                at 956. Specifically, the Court addressed whether the "initiation and recording of the
                conversations" between an informant and criminal suspects constituted a "'communication'
                between an attorney and an adverse party who has retained counsel, without the latter attorney's
                consent or authority of law" in violation of the ABA's Code of Professional Responsibility. Id. at

                955.
                         In holding that the communications by the inforn'mnt were not violative of the prohibition
                on communications with a represented party, the D.C. Circuit relied specifically upon and quoted
                from United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1962), rev'd on other grounds, 377 U.S.
                201 (1964). Lemonakis, 485 F.2d at 955-56. The Lemonakis Court did not simply quote from

                Massiah, however; it proceeded to state, as its own holding, "Similarly here, in a non-custodial

                situation, the Government's instructions to its informant, although provided by a U.S. Attorney as

                well as the investigating officers, were not such as to constitute [the informant] the 'alter ego' of

                thc U.S. Attorney's Office." Id. at 956. This quotation is particularly relevant because plaintiffs

                wrongly assert that "defendants have chosen to quote no more than the words 'alter ego' from the

                                                                      -12-





                  embedded quotation from the Massiah case which they have extracted without disclosure of its
                origin." Pl. Br. at 37. In fact, the phrase "alter ego" appears in both the D.C. Circuit's text as
                well as the quotation from Massiah. Finally, while Lemonakis is a criminal case, the D.C.
                Circuit's holding was issued in the context of analyzing communications with a represented party
                under the ABA's Code of Professional Conduct. The D.C. Circuit's distinction between criminal
                and civil matters, 485 F.2d at 956, quoted in Pl. Br. at 24, was but one factor weighed by the
                Court in finding the absence of an ethical violation, and the Court's analysis of the alter ego
                factor was prior to and independent of the civil-criminal distinction.
                         Plaintiffs also seek to distinguish Miano v. AC&R Advertising, Inc., 148 F.R.D. 68, 81-
                                                                                                                                                  .i
                                                                                                                                                                                                                                                                            '2-

                                    90 (S.D.N.Y. 1993), adopted and approved, 834 F. Supp. 632 (S.D.N.Y. 1993), which is cited in
                the Motion for Reconsideration for the proposition that "the DOJ attorneys were under no
                obligation to prevent communications made by their client (Interior) to its IIM account holders."
                Motion for Reconsideration at 12. Plaintiffs assert that Miano is "another clandestine tape
                recording case," Pl. Br. at 24 (emphasis added), wrongly implying that Miano is factually
                comparable to Lemonakis. Miano, however, involved the taping of a conversation in a civil
   - _          context, a distincti0n which plaintiffs apparently considered to be significant in the context of
                                      -5
                             Lemonakis but not in the context of Miano. Moreover, in arguing that Miano is "equally
                distinguishable," Pl. Br. at 24, plaintiffs repeatedly observe that Miano applied an ad hoc analysis
                to decide whether an attorney had improperly used his client to "circumvent" the ethical bar on
                communications with represented parties. Pl. Br. at 25-26. Plaintiffs conclude their effort at
                distinguishing Miano by repeating their unfbunded and misleading allegations about the role of
                Goverrunent counsel and the testimony of Mr. Edwards. Pl. Br. at 27; see Part II, above


                                                                     -13-





                  (discussing gross misrepresentations and mischaracterizations in plaintiffs' "Factual Background"
                 section). A reasoned review of Miano confirms that the Court did, in fact, review the facts
                surrounding the alleged circumvention of the ethical rules governing attorney conduct in that case
                and concluded that the client acted independently in deciding to speak with the party and that he
                was not acting at the direction of his counsel.  148 F.R.D. at 81-90.
                         Even if the provision of the historical account statements constituted a communication by
                Interior with a represented party, the factual predicate for plaintiffs' allegation - based upon their
                mischaracterized presentation of Mr. Edwards' testimony- does not establish that Government
                counsel surreptitiously directed OHTA to communicate improperly with represented parties,                     i
                                                                                                                                                  i
                                                                                                                                                                                                          i
                Again, it is important to bear in mind the context of the communications at issue in this case.
                This is a case in which the Interior Department - long-criticized for failing to proyide historical
                account statements - attempted to provide statements to account holders. Moreover, prior to

                providing the statements, the Interior Department sought to provide them to plaintiffs' counsel by
                way of the Interior Defendants' initial motion, filed September 10, 2002. Plaintiffs' counsel
                failed to see the statements only because of plaintiffs' objection to the Court's entry of an order

                permitting disclosure to their counsel under the Privacy Act. Moreover, the communication
                complained of is the statement of administrative appellate rights provided by law; surely, Interior
                Defendants would have been criticized even more vociferously if they had omitted a discussion
                of the administrative appellate rights. The conclusion that the facts of this case are anything
                approaching the sort of ethical violation proscribed by Rule 4.2(a) of the Model Rules of
                Professional Conduct is erroneous and, accordingly, requires reconsideration by this Court.



                                                                     -14-





                            V.      This Court Should Reject Plaintiffs' Improper Request for an Order
                                  Directing the Distribution of a Notice to Recipients of the
                                  Historical Account Statements
                         In the final section of their brief opposing the Motion for Reconsideration, plaintiffs ask
                the Court for an order directing defendants to send a wide-ranging notice to recipients of the
                historical account statements. _0 Again, plaintiffs' request fails to comply with the Court's rules
                governing the filing of motions and should be rejected on that basis, alone. Local Civil Rule
                7.1(a) and 7.1 (c). Moreover, plaintiffs' "request" provides no basis for this Court to conclude that
                the legal representatives of the account holders require such notice. Accordingly, this Court
                shoudl reject plaintiffs' request on its merits.
                                                                   Conclusion
                         For the foregoing reasons and the reasons set forth in the Motion for Reconsideration, this
                Court should grant the Interior Defendants' motion for reconsideration, vacate its order holding
                that the Interior Department made improper communications with class members, and rescind its
                referral of government attorneys for disciplinary investigation.
                                                            Respectfully submitted,
                                                          ROBERT Mc, CALLUM, JR.
                                                            Assistant Attorney General
                                                            STUART E. SCHIFFER
                                                           Deputy Assistant Attorney General




                        _0       In so doing, plaintiffs continue their practice of consolidating what they assert is a
               new motion with a pleading responsive to a previously filed Govenunent motion. The
               Govermnent wilt timely file a separate opposition to plaintiffs' "Motion for Order Directing
               Defendants to Rescind Notice Sent to 1200 Trust Beneficiaries."
                                                                     -15-






                                                                   J. CHRISTOPHER KOHN




                                                             Deputy Director
                                                             JOHN WARSHAWSKY (D.C. Bar No. 417170)
                                                             Trial Attorney
                                                             Commercial Litigation Branch
                                                             Civil Division
                                                             P.O. Box 875
                                                             Ben Franklin Station
                                                             Washington, D.C. 20044-0875
                                                             (202) 514-7194
                February 3, 2003                                                                                                             !










                                      _5























                                                                                                                                -16-


        BeN T. Edwards                                                                                                                     December 18, 2002
                                                                              Washington, D.C.

                                                                                                                                                              Page I
              1                          IN  THE  UNITED  STATES  DISTRICT  COURT
            2                                  FOR  THE  DISTRICT  OF  COLUMBIA
           3                                                              x
           4       ELOUISE  PEPION  COBELL,          :
           5           et  al.,      :       Case  No.
           6                              Plaintiffs,          :       t:96CV01285
           7                   v.                                        :        (Judge  Lamberth)
           8      GALE  NORTON,   Secretary  of   :
           9           the  Interior,   et  al.,        :                                                                     i
         10                              Defendants.          :
         11                                                              x
         12                                                 Washington,   D.C.
         13                                                 Wednesday,   December  18,   2002
         14                              Deposition  of  BERT  T.   EDWARDS,   a  witness
         15      herein,   business  address  1801  Pennsylvania  Avenue,
         16      N.W.,   Suite  400,     Washington,   D.C.,   called  for
         17       examination  by  counsel  for  the  Plaintiffs  in  the
         18       above-enbitled  matter,   pursuant  to  notice,   the  witness
         19      having  been  first  duly  sworn  by  MARK  T.   EGAN,   a  Notary
        20       Public  in  and  for  the  District  of  Columbia,   taken  at
        21       the  offices  of  the  Native  American  Rights  Fund,   fourth
        22       floor  conference  room,   1712  N  Street,   N.W.,
        23      Washington,   D.C.,   commencing  at  9:29  a.m.   and  the
        24      proceedings  being  taken  down  by  Stenomask  by  MARK  T.
        25       EGAN,   CVR-CM,   and  transcribed  under  his  direction.


                                                      Alderson RepoSing Company, Inc.
                                         1111 14th S_eet, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005             Exhibit A
                                                                                                                                        De_ndant's Reply in SuppoN
                                                                                                                                                                                  of Motion _r Reconsideration


         Ben T. Edwards                                                                                                                     December 18, 2002
                                                                               Was_ngton, D.C.

                                                                                                                                                             Page 28
               1                   Q.       But  you  don't  recall  the  nature  and  scope
            2       of  the  discussion  in  that  regard?
            3                   A.       Well,   generally  there  were  15  people  or  so
            4       attending  those  meetings,   so  it's  pretty  hard  to  say
            5      who  said  what.     The  consensus  was  that  we  would  go
            6       forward  with  them.
            7                   Q.       Well,   your  understanding  of  a  fiduciary  is
            8      no  different  because  the  government  is  acting  as  a
            9       fiduciary;   is  that  correct?    You  indicated  in  your
          10      definition  that  it  was  related  to  private  parties,
         11       correct?
         12                   A.       No,   I  didn't.
         13                   Q.       Okay.     What  again  is  your  --
         14                   A.       Well,   my  experience  with  fiduciaries  is
         15      mostly  in  the  governmental  sector.     I  worked  --  my
         16       last  15  or  so  years  with  Andersen  I  was  in  charge  of
         17      our  government  audit  practice,   our  nonprofit  audit
                                      >
                    18      practice,   and  almost  all  the  activities  that  those
         19      organizations  do  are  fiduciary  in  one  way  or  another  -
         20       -pension  plans,   unemployment  compensation  trust
         21       funds,   second  injury  trust  funds,   etcetera.
         22                   Q.       How  many  of  the  accounts  that  you  are
         23      mailing  out  to  juveniles  were  sent  to  the
         24       superintendent?
        25                   A.       None.

                                                       Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


         Bert T. Edwards                                                                                                                     December 18, 2002
                                                                               Washington, D.C.

                                                                                                                                                             Page 29
               1                   Q.       How  many  were  sent  out  to  guardians  with
            2       expertise  on  financial  matters?
            3                   A.       I  don't  know  whether  the  parents  or
            4       guardians  had  expertise,   but  all  of  the  mailings  went
            5       to  the  parents  or  guardians.
            6                   Q.       Did  Mr.   Griles  make  the  decision  to  do  the
            7      mailing?
            8                   A.       He  certainly  concurred  in  it.
            9                   Q.       Did  you  make  the  decision  to  do  the
          10      mailing?
         11                   A.       The  conclusion  of  the  group  reviewing  it
         12       was  that  we  should  go  out.
         13                    Q.       Who  was  in  the  group?
         14                   A.       Well,   it  would  be  Mr.   Griles,   Mr.   Cason,
         15      Mr.   Swimmer,   Ms.   Erwin,   Mr.   Jensen.
         16                   Q.       Who's  Mr.   Jensen?
         17                   A.       Larry  Jensen  is  counselor  to  the  Solicitor
         18       of  the  Department  of  the  Interior.
         19                   Q.       Is  he  an  attorney?
         20                   A.       Yes,   he  is.
         21                   Q.       And  who  else?
         22                   A.       Ms.   Spooner  from  Justice,   Ms.   Alexander  of
         23       Justice,   and  I'm  sure  they  probably  consulted  with
         24       their  colleagues.
         25                   Q.       Why  are  you  sure?

                                                       Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


        BenT. Edwards                                                                                                                     Decemberl8,2002
                                                                               Washington, D.C.

                                                                                                                                                             Page30
               1                   A.       Because  --
            2                              MR.   PETRIE:     Be  careful  if  what  you're
            3      going  to  divulge  is  protected  information  under
            4       attorney-client.     With  that  proviso,   please  respond.
            5                              BY  MR.   GINGOLD:
            6                   Q.       Why  are  you  sure?
            7                   A.       They  generally  would  say  that  sometimes
            8       some  of  their  colleagues  would  attend  the  meeting,
            9       sometimes  they  wouldn't.
          10                   Q.       Which  colleagues  are  you  referring  to?
          11                   A.       I'm  sorry?
          12                   Q.       Which  colleagues  are  you  referring  to?
         13                   A.       Mr.   Kohn  was  one.     Mr.   Miller  occasionally
         14       came  to  meetings.
         15                   Q.       Is  that  Peter  Miller?
         16                   A.       Peter  Miller.
         17                              I  don't  recall  the  others,   but  if  you
         18       rattled  _ff  some  names  I  could  probably  confirm
         19      whether  they  attended  any  meetings  or  not.
         20                   Q.       Did  anybody  object  to  the  distribution  of
         21       the  information  to  the  trust  beneficiaries?
         22                              MR.   PETRIE:     Again,   if  you  can  answer  that
         23      without  disclosing  any  information  that's  protected  by
         24       the  deliberative  process  privilege  in  the  sense  that
         25      people  were  offering  advice  or  recommendations,   you

                                                       Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


        Be_ T. Edwards                                                                                                                     December 18, 2002
                                                                               Washington, D.C.

                                                                                                                                                             Page 31
               1       can  go  ahead  and  answer  it.
            2                              THE  WITNESS:     I  don't  believe  anybody
            3       objected.
            4                              BY  MR.   GINGOLD:
            5                   Q.       Do  you  believe  that  was  a  matter  related  to
            6       litigation,   the  distribution  of  the  information?
            7                   A.       Well,   certainly  the  delay  in  sending  it
            8       out       I  believe  there  was  a  TRO  filed  and  we  actually
            9      pulled  the  distribution  the  day  that  was  filed  and                   i
         10      waited  several  weeks.     Nothing  happened.     The  decision
         11      was  made  to  then  go  forward.
         12                   Q.       But  with  regard  to  the  decision  and  the
         13      preparation  of  this  information,   was  that  as  you
         14      understand  it  in  your  capacity  as  a  manager  of  the
         15       trust?
         16                   A.       I'm  the  Executive  Director  of  the  Office  of
         17      Historical  Trust  Accounting.     I  made  the  decision  that
                                      i t

                     18       the  statements,   historical  statements  of  account,   were
         19      ready  for  mailing.     That  was  concurred  in  by  the
         20       Special  Trustee  and  by  others  on  my  staff.
         21                   Q.       Did  you  make  that  in  the  context  of  a
         22       fiduciary  in  the  administration  and  management  of  the
         23       trust?
         24                   A.       I  did  it  as  a  manager  and  sought  the
         25       concurrence  of  the  Special  Trustee.


                                                       Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005




                                                                                   U.S. Department of Justice
                                                                                   Civil Division, Commercial Branch
                                                                                   1100 L Street, N.W., Room 10030
                                                                                   Washington, D.C. 20005

                     John _Vurshawsky                                                         Te[epho.e,' (202) 307-0010   Facslmde.' (202) 514-9163



                                                                                                         January24,2003

                   By Facsimile
                   Mr. De,mis M. Gingold
                   1275 Pennsylvania Avenue, N.W., Ninth Floor
                   Washington, D.C. 20004
                   Re: Cobell v. Norton - Plaintiffs' Opposition to Motion for Reconsideration of Rule 23(d) Order                       i
                   Dear Mr. Gingold:
                            We received plaintiffs' opposition to Interior Defendants' Motion for Reconsideration of the
                   Court's Rule 23(d) Order, issued December 23, 2002, and we are in the process of preparing a reply
                   brief. I did, however, want to bring a specific matter to your attention because I bclieve your pleading
                   misstates the facts regarding the meet-and-confer discussion which took place on January 8, 2003,
                   pursuant to Local Civil Rule 7. l(m).
                            Your pleading states in both footnote 24 and footnote 34 that we failed to contact you to discuss
                   our motion, as required by Local Rule 7. l(m). Moreover, footnote 24 states that our motion for
                   reconsideration fails to contain any statement about our meet-and-confer discussion, as required by
                  Local Rule 7.1(m). Ill fact, you and l spoke by tclcphone about this motion on January 8, 2003, at
                   approximately 12:15 that afternoon.  I left you a voicemail about the motion earlier that morning, and
                  you returned my call. During our conversation, I described tile motion that we planned to file and asked
                  for your clients' position. You promptly advised me, during the same conversation, that the plaintiffs
                  would oppose the motion.' Moreover, this conversation is specifically referenced in the first para.graph
                  of our motion, where we Stated, "On January 8, 2003, counsel for the Interior defendants conferred with
                  plaintiffs' counsel regarding this motion and was advised that plaintiffs would oppose the motion."





                            '        hi fact, since I fully anticipated from our conversation that plaintiffs would oppose the
                   motion, I advised you that I was sitting down and awaiting ),our response. This prompted you to laugh
                   before you advised me that the motion would be opposed.


                                                                                                                                      Exhibit B
                                                                                                                             Defendant's Reply in Support
                                                                                                                                                              of Motion for Reconsideration



                                                                               -2-
                            In light of the foregoing errors, which I assume were inadvertent, please advise us whether you
                   will be withdrawing your assertions in footnotes 24 and 34. Thank you for your prompt attention to this
                   matter.

                                                                Very truly yours,


                                                f      (...__J2hn Warshawsky            (/"
                                                                Trial Attorney                '%.._..__
                                                                Commercial Litigation Branch
                                                                Civil Division
                   cc: Mr. Keith Harpcr, Native American Rights Fund





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                                        0_2        OK,           a                   98220068                                                         8EI.5/_33    88: D8: 42


                                                                                                                                   -IX_J/CIUIL DIUISION
                                        _*_>eol_._**_o;o_,_  _                                   -  *_**_  -                  202  _1_  _16_-  _o_






                                                                                                                               FACSIMILE IK4NS_
                                              To:               Mr. Dennis M. Gingold [Facsimile number (202) 318-2372]
                                                                  Mr. Kcith Harper [Facsimile number (202) 822-0068]
                                              From:            John Warshawsky, Trial Attorney
                                                                  United Stat:$ Department of Justice
                                                                  Commercial Litigation Branch, Civil Division
                                                                   ] 100 L Street N.W,, Room 10030
                                                                  Washington D.C. 20005

                                                                  Office telephone: (202) 307-0010
                                                                  Facsimile numb:r: (202) 514-9163

                                             Pa ge_ (including cover page): 3

                                             CommenB.:

                                             pate oftransmissi0a: Friday, January 24, 2003
                                               ,                                                                                                                                                                            i
                                                              NOTE; THIS FACSIMILE IS INTENDED ONLY FOIl. THE ABOVIi-DESIGN'ATF, D  ADDRESSEE. ITl'dAY
                                             CONTAIN INFOR.MATION WHICH IS PRJVILEGED, CONF1DEArTIAL, OR OT/{ERWISE PROTECTED
                                             FROM DISCLOSURE TO ANYONE  OTHER THAN THE ADDRZ_$B]_,
                                             ne YOU ARE NOT THE ADDR_?,_EE AN'D I'L_VE RtiCEIVED THIS FACSIMILE IN ERROR:
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                                                             CERTIFICATE OF SERVICE
                         I declare under penalty of perjury that, on February 3, 2003 1 served the foregoing Interior
                Defendants'Reply Brief in Support of Motion for Reconsideration of Order Prohibiting
                 Communications with Class Members 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 Kester 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

                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
               By Hand upon:     :
               Joseph S. Kieffer, III
               Special Master Monitor
               420  7 th
                                  Street, N.W.
               Apartment 705
               Washington, D.C. 20004
               (202) 478-1958
                                                                                ////f,/_  //_
                                                                                                                 ,
                                                                            Kevin P. Kingston    (:/
                                                                                                      7