iN THE U%rITED STATES DISTRICT COURT
                                                   FOR THE DISTRICT OF COLU_VlBiA
                                                                     )                                         _.
                           ELOUISE PEPION COBELL et al..__:.,          )
                                                                     )        No. 1:96CV01285
                                  Plaintiffs,                       )        (Special Master-Monitor Kieffer)
                            V,                                                              )
                                                                                                              )
             GALE. A. NORTON, Secretary of            )
                 the Interior, et al..__:.,                                )
                                                                     )
                            Defendants.                    )
                                                                     .)
                                   DEFENDANTS' BRIEF IN OPPOSITION TO                                            i
                                         RESTRICTIONS ON DEPOSITION WITNESSES                                         i
                                                                                                                                                  2

                                                         The Secretary of the Interior and the Assistant Secretary - Indian Affairs ("Defendants")
                 hereby respond, as requested by Special Master-Monitor Joseph SL Kieffer, III, with a brief on
                 the issue of "sequestration" of'certain witnesses called for deposition. The Special Master-
                 Monitor convened a telephone conference on Tuesday, November 26, 2002, after Plaintiffs

                 complained about Defendants' letter, sent following the conclusion of the initial round of

                 depositions of three officials of the Department of the Interior, noti lying Plaintiflk that they did
                 not intend to keep these three witnesses "sequestered." As demonstrated below, Defendants
                 have no obligation to perpetuate the sequestration of any witnesses, and Plaintiffs can show no

                 prejudice whatsoever. The act of "sequestering" witnesses, especially in the deposition context,
                 is strongly disfavored and ma>' not be imposed absent a clear finding of "compelling or

                 extraordinary" need. See. e.,.z.. Alexander v. FBi, 186 F.R.D. 21, 53 (D.D.C. 1998)(kamberth,
                 J.). Plaintiffs bear the burden of demonstrating such "extraordinary" need but have completely
                 failed to do so.





                            The essential background facts regarding sequestration are not in serious dispute. On

                 September 17, 2002, the Court ordered that Defendants submit by January 6, 2003 a plan for

                 "conducting a historical accounting of the iIM trust accounts" and a plan for "bringing
                 themselves into compliance with the fiduciary obligations that they owe to the IbM beneficiaries.
                 Order, Sept. t7, 2002, at 3. The Court also authorized discovery to be taken prior to a trial on
                 the merits of the plans, set for May 2003.
                          At the first discovery conference held by the Special Master-Monitor on October 3,
                 2002, Plaintiffs requested certain modifications to the Federal Rules. One modification
                 Plaintiffs sought was "sequestration" of'three witnesses. J. Steven Griles, James Cason and Ross
                                                                                                                                                  :i
                                      Swimmer, each of whom is an official of the Department of the Interior involved in work on the

                 plans ordered by the Court. Discovery Tr. at 229 (Oct. 3, 2002). Defendants a_eed only to
                 consider such a proposal, and the Special Master-Monitor directed Plaintiffs to submit a

                 proposed fom_ of sequestration. Id...._=., tr. at 230.
                          Tile matter was discussed again during a second discv'e_ conference on October 18,
                 2002. Tile Special Master-Monitor described a general understanding on "sequestration" with

                 respect to thc depositions of Messrs. Griles, Cason and Swimmer to be held during the month of
                 November.
                                   MR. KIEFFER: Here's what he [Defendants' counsel] is going to do.
                          There is going to be a deposition with Cason. Cason can talk to his counsel.
                          Cason can't talk to Griles or anyone about that deposition. The counsel may [or
                          may] not be tile same counsel that Cason spoke to that then preps Swimmer in
                          his deposition. In that prep, they can talk about a whole range of subjects, but
                          they will not indicate that any particttlar subject was discussed at the deposition.
                          And in that range, the subjec_ is going to be larger than what was in that
                          deposition, so there is going to be no knowledge on thc part of Mr. Swimmer

                                                                        9





                            that the subjects they are prepping him on are just the subjects that were
                          discussed in the deposition.
                  Discovery Conference Tr. at 19-20 (Oct. 18, 2002). The full terms of"sequestration," however,
                 were never specified and were not thereafter reduced to a fomml written protective order. Thc

                 Special Master-Monitor previously noted that "la]il three deponents would be subject to a

                 sequestration order to be agreed to by the parties to prevent their talking to each other about
                 their individual depositions." Letter from Special Master-Monitor Kiefl_r to the parties, dated
                 October 14, 2002 at 4 (emphasis added) (citing the Discovery Confbrcnce Tr. at 229-230 (Oct.
                 3, 2002).  No protective order, however, was ever proposed to, considered or entered by the
                 Court on the subject of sequestration; nor has the Court made any independent determination of

                 "good cause" for entering a protective order.
                          During November, Plaintiffs took depositions of Messrs. Griles, Cason and Swimmer.

                 Initially, Plaintitt's asked for each of these witnesses to be produced for three days of deposition
                 in November, with the possibility that these witnesses might be deposed again in January,
                 following the filing of'the Defendants' plans with the Court. The Special Master-Monitor
                 summarized as l:blIows:
                          MR. KIEFFER:  Let's take three chLvs now and see what's left over. I would rule
                          that they have the right to take them again after the plan. But there's so much
                          that they have to do with them, let's see how fast they finish thefirst three days.
                          And I'll be there. I'm going to come to these depositions to make sure they
                          progress fairly but rapidly. Then we'll address that issue later on.

                 Discovery Conference Tr. at 197 (Oct. 3, 2002) (emphasis added). As things proceeded,
                 however, Plaintiffs took only one full day of deposition for each witness during November. At

                 present, no additional deposition dates have bccn sought by Plaintiffs fbr these three witnesses.

                                                                        3





                            After the initial round of depositions of the three witnesses was complete, Defendants
                 notified Plaintiffs in writing that they did not intend to keep these witnesses "sequestered."
                 Letter from Sandra P. Spooner to Keith M. Harper, dated November 25, 2002. This notice

                 prompted Plaintiffs' complaint, the Special Master-Monitor's subsequent telephone conference,
                 and his request for this brief.
                                                                 ARGUMENT
                          A.      The Sequestration "Issue" Is Not, Ripe For Decision
                          Before establishing the total lack of merit in Plaintiffs' demand for witness sequestration,
                 Defendants note that the matter is not even ripe for decision by the Special Master-Monitor.                      3
                                                                                                                                                  5

                                      The issue, simply put, has not been properly presented to you for consideration, or for a report
                 and recommendation.
                          Plaintiffs have made no motion for the Special Master-Monitor to consider. The relief

                 they seek can only be afforded, if at all, by means of a protective order entered by the Court

                 pursuant to Federal Rule of Civit Procedure 26(c). Plaintiffs have not sought such an order, nor
                 have they attempted to demonstrate their entitlement to such extraordinary' relict_  By failing to

                 carry this burden, Plaintiffs' request should be summarily denied.
                          In the order of the Court establishing tile role of the Special Master-Monitor, the Court

                 expressly instructs the Special Master-Monitor "to ensure that discovery is conducted in the
                 manner required b3' the Federal Rules of Civil Procedure and the orders of this Court." Order
                 of Sept. 17, 2002, 'IS at 4 (emphasis added). [h_ler the Federal Rules, there is no automatic
                 exclusion ot'xvitnesses in depositions.  Rule 30(c), wlnich governs the conduct of depositions,
                 expressly provides that "[eJxamination and cross-examination of witnesses may proceed as
                                                                        '4





                   permitted at trial under the provisions of the Federal Rules of Evidence except Rules I03
                 [concerning the making of objections] and 615 [regarding the exclusion of witnesses]." Fed. R.
                 Civ. P. 30(c) (emphasis added). The Advisory Committee notes to the 1993 amendments to this
                 role state that the "revision [adding an exception to Rule 615] provides that other witnesses are
                 not automatically excluded from a deposition simply by the request of a party. Exclusion,
                 however, can be ordered under Rule 26(c)(5) when appropriate." Fed. R. Civ. P. 30(c) advisory
                 committee note.
                          Rule 26(c), however, only comes into play upon a "motion by a party'.., and for good
                 cause shown." Fed. R. Civ. P. 26(c). No motion and no showing of good cause has been made.                 i

                 Therefore, it is not proper for the Court (or the Special Master-Monitor) to consider the issue at
                 this time.
                          B.      Plaint![.f.s Are Not Entitled To Demand An Informal Protective Order
                          Defendants cammt be compelled to adhere to what had been nothing more than an
                 informal, and not fully defined, arrangement to "sequester" certain witnesses. With the terms of
                 the sequestration not completely identi fled, as through an order entered by the Court, there is no

                 obligation on either party to observe any "sequestration."
                          Rule 26(c) expressly requires entry of a protective order. No protective order was
                 issued. Indeed, even a stipulated protective order - one agreed to by' both parties - cannot be

                 properly entered without the court first making its own independent determination that "good
                 cause" exists for the order. Jepson. Inc. v. Makita EJec. Works., 30 F.3d 854, 858-59 (7th Cir.

                 1994) (overturning sanctions Ibr violation ot'stipulated protective order where no "good cause"
                 determination was made by magistrate); cf. United States v. Kentucky Uti ls. Co., 124 F.R.D.
                                                                         5





                   146 (E.D. Ky. 1989), rev'd o_n. gther grounds. 927 F.2d 252 (6th Cir. 199l) (stipulated
                 confidentiality orders should not be given binding effect even if they are entered by the court;
                 court should balance the interests between privacy and public access at the time the motion to

                 modify a protective order is made). The record here is entirely devoid of any "good cause"
                 determination as required by Rule 26(c). Thus, there having been no such determination and no

                 protective order entered, no party is under any duty to sequester any witnesses.
                          Indeed, even if it were possible to interpret Defendants' observance of sequestration
                 during the initial round of depositions as somehow evidencing a complete "agreement" on a
                                                                                                                                    
                        sequestration practice, such a so-called "agreement" would not be entbrceable. Courts have held                _
                 that even when parties agree or simply "stipulate" to protective orders under Rule 26(c), and
                 even when such stipulated orders are entered by the court, those orders are not enforceable
                 unless: (1) the part), seeking protection under the order has demonstrated "good cause" for the
                 restriction and (2) the Court has made an independent determination that "compelling or

                 extraordinary circumstances" exist warranting enforcement. See Procter & Gamble Co. v.
                 Bankers Trust Co., 78 F.3d 219, 227-228 (6th Cir. 1996) ("good cause" determination needed
                 even when protective order terms are stipulated); FTC v. Digital Interact i.e Associates, 1996
                 WL 912156, at *3 (D. Colo. 1996)("court in determining whether or not to enforce a

                 confidentiality agreement which has not been entered by the court as a protective order [must
                 consider] whether the party seeking to enforce its provisions can demonstrate 'good cause' for

                 doing so under Fed. R. Civ. P. 26(c)") (denying enforcement).  Neither condition is satisfied
                 here.





                             C.      The Sequestration of _jtnesses Plaintiffs Seek Is S trgngly Disfavored
                          1.      Rule ofE_._idence 615 Does Not App.ly
                          The entire idea of "sequestering" witnesses is foreign to deposition discovery. The
                 notion of"sequestering" a deposition witness is founded on an ill-advised extension of an
                 unwritten expansion of a rule of evidence employed at trials. The concept of"excluding" or

                 sequestering witnesses is found in the trial context. Federal courts may order people who will
                 be witnesses at a trial excluded from the courtroom "so that they cannot hear the testimony of
                 other witnesses, and it ma), make the order on its own motion." Fed. R. Evid. 615 (emphasis
                 added). This rule, by its own terms does not authorize the type of restrictions Plaintiffs want to

                 impose on Interior Department officials. It says absolutely nothing about preventing witneses
                 from speaking to others; it merely prevents them from sitting in court and listening to other
                                                                                      TI
                                                                                                                                                                                                   aoJ!
                                       testimony. Thus, Rule 615 cannot be a basis for the broad  g ,,  nile that Plaintiffs want.

                          Moreover, Rule 615 sirnply does not apply to deposition discovery and cannot be a basis
                 for authorizing restrictions on deponents. The Court opined on this very isstle in Alexander v.

                 FB.__], 186 F.R.D. 21, 53 (D.D.C. 1998), when it refused to impose witness restrictions that were
                 far narrower than the ones Plaintiftk seek here. In Alexande..___ r, the plaintiffs sought only to keep
                 certain potential witnesses from sitting in on the deposition of other witnesses; the plaintiffs
                                               '_O'   Ortl
                                      there were not seeking to  _aa  witnesses, as Plaintiffs are here.
                          The Court, however, denied the plaintiffs' motion, diseussing Rule 615 as follows:

                                   Fit:ally, ptaintit't_ request that this court prohibit Sally Paxton, Special
                          Associate Counsel to thc President, aad David Cohen, attorney for Craig
                          Livingstone, fi'om appearing at any further depositions in this case. Plaintiffs
                          make this request pursuant to Rule 6t 5 of the Federal Rules of Evidence.





                                      Rule 615 states in relevant part that '![a]t the request of a party the court
                          shall order witnesses excluded so that they cannot hear the testimony of other
                          witnesses ..." Fed. R. Evid. 615. Plaintiffs contend that Paxton and Cohen are
                          material witnesses in this case and therefore, these individuals should be
                          excluded from future depositions.
                                   PlaintifJ_" reliance on Rtde 615 is misplaced. Rule 30(c)ofthe Federal
                          Rules of Civil Procedure governs the conduct of depositions and states that
                          "[e]xamination and cross-examination of witnesses may proceed as permitted at
                          the trial under the provisions of the Federal Rules of Evidence except Rules 103
                          and 615." Fed. R. Civ. P. 30(c). The Advisory, Committee notes to Rule 30(c)
                          add that 'It]he revision provides that other witnesses are not automatically
                          excluded from a deposition simply by the request of a party. Exclusion,
                          however, can be ordered under Rule 26(c)(5) when appropriate." Id. (Advisory
                          Committee Notes for Rule30(c), 1993 Amendments). Rule 26(c)(5) permits the
                          court to enter a protective order ordering "that discovery be conducted with no
                          one present except persons designated by the court." Fed. R. Civ. P. 26(c)(5).                             i
                          .. [P]laintiffs have failed to identify any compelling or extraordinary
                          circumstances warranting the exclusion of these witnesses from future
                          depositions.
                  186 F.R.D. at 53 (emphasis added). The decision in Alexander makes two things clear, First, it
                 is not Rule of Evidence 615 that governs depositions, but Fed. R. Civ. P. 26(c). Second, there
                 must be "compelling or extraordinary circumstances" before a restriction on deposition
                 witnesses can be justified or imposed.
                          2.      No "Extraordinary" Circumcst.aj.kce.s.. Exist To Justify Sequestratio..n..
                          Federal Rule of Civil Procedure 26(c) allows for entry of a protective order limiting
                 discovery, but only when certain "extraordinary" circumstances are shown to exist, none of
                 which are present here. Rule 26) provides in pertinent part(s):
                          Upon motion by.' a party or by the person tonl whom discovery is sought .... for
                          good cause shown, the court in which the action is pending.., may make any
                          order which justice requires to protect a party or person from atmoyal'tce,
                          embarrrtssmeHt, opression, or w_due burdet_ or e.r?ense, inctudmg one or more
                          oF the tblloxx ing:






                            (5) that discovery be conducted with no one present except persons designated by
                          the court ....
                 Fed. R. Civ. P. 26(c) (emphasis added). Before an order can be recommended or issued under
                 Rule 26(c), there must be proof of specific "annoyance, embarrassment, oppression, or undue
                 burden or expense" that requires intervention. These are the "compelling or extraordinary
                 circumstances" that must exist and that the Court found lacking in Alexander. As in Alexander,
                 no "extraordinary" grounds exist here.
                          To the contrary, Plaintiffs have done no more than insinuate generally that Defendants

                 (and, by implication, their employees) cannot be trusted. A generic claim is plainly insufficient.
                 Courts have required specific t_acts that establish serious, well-founded concern that coercion or
                 collusion will, in fact, occur absent restrictions. "Rule 26(c)'s requirement of a showing of good
                 cause to support the issuance of a protective order indicates that 'it]he burden is upon the
                 movant to show the necessity of its issuance, which contemplates a particular and specific
                 demonstration offitct as distinguished from stereotyped and conclusory statements.'" In re Terra

                 Int'l, Inc., 134 F.3d 302,306 (5th Cir. t998) (per curiam) (quoting United States v. Garrett, 571
                 F.2d 1323, 1326 n.3 (5th Cir. 1978)) (emphasis added). "Broad allegations of harm,
                 unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test."
                 C jpollone v. Ligge.tt Group, lnc., 785 F.2d 1108, t 121 (3d Cir. 1986), cert. denied, 484 U.S. 976

                 (1987); Tuszkiewicz y. AllcnBradley Co., 170 F.R.D. 15, 16-17 (E.D. Wisc. 1996) (protective
                 order denied where there were no "distinct t'acls that would lead the court to conclude that the
                 witnesses cannot bc trusted to tell the truth or that their attending each other's depositions will
                 otherwise affect their testimony"); see also 8 C. Wright & R. Marcus, FEDERAL PRACTICE AND

                                                                                                     9





                   PROCE DU RE ' 2035 (I 994) ("The courts have insisted on a particular and specific demonstration
                 of fact, as distinguished from stereotyped and conclusory allegations.").
                          3.      Strong Policy Reasons And Practical Concerns
                                   Als0. Militate Against Sequestr. a.ti..o.n In Depositions
                          Several substantial reasons exist for setting the threshold for witness restrictions so high.
                 First, Federal Rule of' Civil Procedure 30, by its own terms, does not contemplate such
                 restrictions as a matter of course. Without a specific showing of real harm, almost every
                 deposition could qualify for some kind of witness restriction. Ill one case, the Fifth Circuit

                 granted mandamus in order to vacate a district court's sequestration order. In re Terra Iht'l, 134
                 F.3d at 306-07. Thc order was based on a "conclusory allegation that a substantial majority of
                 the fact witnesses.., are employees of Terra la party] and that they will therefore be subject to
                 Terra's influence and will bc inclined to protect each other through a sense of'camaraderie."' Id.
                 at 306. The court held that no good cause for sequestration existed and "[t]o conclude otherwise
                 WOkttd indicate that good cause exists for granting a protective order any time fact witnesses in a
                 case are employed by the same employer or are employed by a party in the case." Icl. The court
                 noted that such a low tlnreshold x_'ould be "inconsistent with this court's admonition that a
                 district court may not grant a protective order solely on the basis of'stereotyped and conclusory
                 statements.'" l dd.; see also Jones v. Circt K Stores, Inc., 185 F.R.D. 223,224 (M.D.N.C. 1999)
                 (denying protective order where facts alleged did not appear "as being anything more than

                 ordinary garden variety or boiterplate 'good cause' t'acts which will exist in most litigation")
                 (quoting BCi Comm. Sys.., Inc. v. Bell Atlantic o.t.n Svs., Inc., t12 F.R.D. 154, 160 (N.D. Ata,

                 1986)); Tuszkiewicz, 170 F.R.D. at 17 (protective ordcr sought because witnesses were

                                                                        10





                   employees of a party did not prove "good cause"; to grant the order "would surely mandate the
                 same result in all cases in which there was more than one tact witness on an issue and where the
                 movant alleges that prejudice could result").
                          Second, the process of' deposition discovery is such that restrictions on witnesses are

                 wholly unnecessary. Opposing parties can explore at length the contacts one witness has had
                 with another, the transcripts or documents a witness reviewed before being deposed, whether the
                 witness discussed previous depositions with other witnesses, and what the content and purpose
                 of those discussions were. Ail of these avenues are open to examination, and permit the
                 examiner to ferret ottt collusion or, more innocently, a polluted recollection based on                              i

                 conversations with others. By contrast, a ",,ao"a_  on deposition witnesses is no guarantee against
                 collusion or pollution (both can still take place prior to the first deposition) and promises no real

                 improvement over effective deposition questioning.
                          Third, a "gag" restriction places onerous burdens on witnesses and other litigants that
                 should be avoided absent tile presence of truly exceptional circumstances. See Conrad v. Board
                 of Corem'rs, No, 00-207, 2001 WL t 155298, at *2 (D. Kan. Sept. t7, 2001) ("Sequestration el

                 deponents should be the exception rather than the rule."). The sequestration sought in this case
                 would require three top officials of the Department of the Interior   the Deputy Secretary, the
                 Associate Deputy Secretary and the Director of the Office of Indian Trust Transition - to

                 conscientiously refrain from mentioning anything relating to their deposition questioning or

                 testimony for as long as another Four months, unti! discove O' closes. These three officials are

                 presently working day to day on matters et'trust rc[brm, which involves topics inextricably tied
                 to [he subjects covered in deposition. These gentlemen must also communicate and converse
                                                                        11





                   with one another so that the plans ordered by the Court can be timely submitted on January 6,
                 2003. These circumstance place an enormous - and wholly unnecessary - burden on these
                 witnesses to watch every word they say, so that some trivial revelation or recollection of some

                 deposition moment is not unthinkingly spoken.
                          These officials should not be subjected to such a long, drawn out duty when they need to
                 be free to put all their energy into trust reform efforts. As one court observed in the context ora
                 criminal trial, "[i]t is somewhat unrealistic to expect policemen, agents, experts and witnesses
                 who have known each other for years and who have worked together in preparing a case to sit
                 for hours together in a witness room or a halt without carrying on some conversation." United                   i

                 States v. Scharstein, 531 F. Supp. 460, 464 (E.D. Ky. 1982) (denying new trial based on court's
                 refusal to issue a "gag" order for witnesses). Indeed, sequestration in this circumstance would
                 also burden the court, by plunging it into a "myriad of enforcement problems and a plethora of
                 collateral issues," id., where no real need exists in the first instance.

                          Finally, such restrictions could, if imposed, deny Defendants fundamental fairness. By
                 unnecessarily restricting how Defendants can prepare their witnesses and investigate the case in

                 preparation for trial, a sequestration order can run afoul of the Constitution. As at least one
                 court explains:
                          In the view of this court, absolute adherence to the more stringent view [i.e.,
                          ordering witnesses not to discuss their testimony] involves such practical
                          difficulties as to be for the most part unworkable. [n any hard-fought case the
                          parties adjust and revise their strategies as the trial proceeds. As the Supreme
                          Court of the United States has pointed out:
                                   "It is cornmon practice dttring such (overnight) recesses for all
                                   accused and counsel to discuss the events of the day's trial. Such
                                   recesses are o2en times of intensive work, with tactical decisions
                                                                        12





                                      to be made and strategies to be reviewed. The lawyer may need to
                                  obtain front his client information made relevant by the day's
                                  testimony, or he may need to pursue inquiry along lines not fully
                                  explored earlier. At the very least, the overnight recess during trial
                                  gives the defendant a chance to discuss with counsel the
                                  significance of the day's events. Our cases recognize that the role
                                  of counsel is important precisely because ordinarily a defendant is
                                  ill-equipped to understand and deal with the trial process without
                                  lawyer's guidance." [Quoting Geders v. United States, 425 U.S.
                                   80, 88 (1976).]
                           It is also common practice and an essential part of trying a case for the trial
                          attorney to confer with his experts and other prospective witnesses during such
                          recesses, as well as before trial. If has been held that to deprive a party', even a
                          corporate par O' it_ a civil case, of the right to consult with counsel as the trial
                         proceeds is to i_zfrit_ge its right to due process of taw.  This court believes that                             !
                          similar considerations apply to the right of a part).' to have his co_nset free to
                          discuss with prospective witnesses developments in the case, i_lclucting the
                          testimony of other witnesses.
                                   If counsel can relate to a witness what another witness has said, it would
                          seem to be an exercise in futility for the court to try to prohibit one witness from
                          talking to another about the case outside the courtroom. Although the United
                          States in a criminal prosecution may not technically have a right to due process
                          of law, this court believes that fairness requires that it be afforded the same
                          latitude in the interpretation of Rule 6I 5 that due process would afford a
                          corporate defendant.
                 Scharstein, 531 F. Supp. at 463-64 (cmphasis added) (footnotes omitted). No less concern
                 exists here.











                                                                        13





                                                                     CONCLUSION
                          For the foregoing reasons, no order of sequestration is warranted and no sequestration
                 obligation should be imposed on deposition witnesses.


                 Dated: December 4, 2002                               Respectfully submitted,
                                                                              ROBERT D. McCALLUM, JR.
                                                                              Assistant Attorney General
                                                                              STUART E. SCHIFFER
                                                                               Deputy Assistant Attorney General
                                                                              J. CHRiSTOPHER KOHN
                                                                              Director





                                                                               D.C. Bar No. 261495
                                                                              JOHN T. STEMPLEWICZ
                                                                               Senior Trial Counsel
                                                                              MICHAEL J. QUINN
                                                                              Trial Attorney
                                                                               D.C. Bar 401376
                                                                               Commercial Litigation Branch
                                                                               Civil Division
                                                                               P.O. Box 875
                                                                               Ben Franklin Station
                                                                               Washington, D.C. 20044-0875
                                                                               (202) 514-7194








                                                                        14





                                                             CERTiFICATE OF SERVICE
                          I declare under penalty of peri ury that, on December 4, 2002, I served the foregoing
                 Defendants' Brief in Opposition to Restrictions on Deposition Witnesses by facsimile, in
                 accordance with their written request of October 3 l, 2001 upon:
                 Keith Harper, Esq.                                                Dennis M Gingold, Esq.
                 Native American Rights Fund                                   Mark Brown, Esq.
                 1712 N Street, NW                                                1275 Pennsylvania Avenue, NW
                 Washington, DC 20036-2976                                   Ninth Floor
                 202-822-0068                                                     Washington, DC 20004
                                                                                       202-318-2372
                 and by U.S. Mail upon:
                 Elliott Levitas, Esq.
                 l 100 Peachtree Street, Suite 2800                                                                                         :i
                 Atlanta, GA 30309-4530
                                                                                                                                                  'i

                                      and by U.S. Mail and by facsimile upon:
                 Alan L. Balaran, Esq.
                 Special Master
                 1717 Pennsylvania Ave., NW
                 12th Floor
                 Washington, DC 20006
                 202-986-8477
                 Joseph S. Kieflkr, Iit, Esq.
                 Special Master-Monitor
                 420 7th Street, NW
                 Apt 705
                 Washington, DC 20004
                 202-478-1958



                                                                              Sean P. Schmergel