.       
                                                                                                                                                                                                                                                                                                                                                   .....

                                                                                                                                   rN ThE t iZED STATES DISTraCT COURT
                                 FOR THE DISTRICT OF COLUMBIA     .... _ .,.' :_  :_i  :;: ,.:...':

                 ELOUiSE PEPION COBELL, et al.,     )                                          CL [:7_i';
                                                                 )
                                  Plaintiffs,          )
                                                                 )
                               v.                       )            Case No. I:96CV01285
                                                                 )            (Judge Lamberth)
                 GALE A. NORTON, Secretary of the    )
                 Interior, et al.,                               )
                                                                 )
                                  Defendants.        )
                                                                )

                      INTERIOR DEFENDANTS' MOTION FOR A PROTECTIVE ORDER
                                 AS TO DISCOVERY BY THE SPECIAL MASTER-MONITOR
                                   AND AS TO THE RULE ANNOUNCED BY THE SPECIAL
                            MASTER-MONITOR CONCERNJ. N,G DEPOSITION @UESTIONING
                         The Secretary of the Interior and the Assistant Secretary-Indian Affairs (the "Interior
                Defendants") hereby move this Court, pursuant to Federal Rule of Civil Procedure 26(c), for an order
                that (1) discovery by the Special Master-Monitor to the Interior Defendants not be had; and (2) that
                the Special Master-Monitor not attempt to make dispositivc substantive rulings at depositions and
                compel witnesses, under threat of potential disciplinary' action against their counsel, to answer questions
                over the objections and instruction of their counsel. As set forth in the accompanying Memorandum of
                Points and Authorities, the discovery' sought by the Special Master-Monitor is oppressive and unduly
               I>urdcnsomc, ami his attempt to issue snbstantivc rulings ot_ discovery disputes, rather than to submit
               thcn_ to thc Court as t'cquircd, is bcyoml his authority and [mpro[.cr.

                             Accordingly, thc [merior Dcfclldants reclucst that thc Court enter thc proposed order attached
               hereto, granriIng thc relict' stated above, and such other and t'urther relief' to which tine interior

                   Defendants may be entitled.
                          Counsel for the Interior Defendants hereby certify, pursuant to the Local Rules of the District
                 Court and Federal Rute of Civil Procedure 26(c), that they have conferred with plaintiffs' counsel, who
                 state that they oppose this motion.
                 Dated: January 23, 2003

                                                                              Respectfully submitted,
                                                                              ROBERT D. McCALLUM
                                                                              Assistant Attorney General
                                                                              STUART E. SCHIFFER
                                                                              Deputy Assistant Attorney General
                                                                              J. CHRISTOPHER KOHN
                                                                              Director

                                                                            ___<_'_ _x..--._....__
                                                                  'SAN-_DRA p. sPOONER-'-_
                                                                              Deputy Director
                                                                              DC Bar No. 261495
                                                                              JOHN T. STEMPLEWICZ
                                                                              Senior Trial Attorney
                                                                              CommcrciaI Litigation Branch
                                                                              Civil Division
                                                                              P.O. Box 875
                                                                             Ben Franklin Station
                                                                              Washington, D.C. 20044-0875
                                                                             (202) 5t4-7194

                                                   IN THE UNITED STATES DISTRICT COURT
                                                   FOR THE DISTRiCT OF COLUMBIA
                 ELOUISE PEP[ON COBELL, et al.,     )
                                                                  )
                                  Plaintiffs,          )
                                                                 )
                               v.                       )            Case No. 1:96CV01285
                                                                 )            (Judge Lamberth)
                 GALE A. NORTON, Secretary of the    )
                 Interior, et al.,                               )
                                                                 )
                                  Defendants.        )
                                                                 )
                         PROTECTIVE ORDER AS TO DISCOVERY BY THE SPECIAL
                            MASTER-MONITOR AND AS TO THE RULE ANNOUNCED BY THE
                      SPECIAL MASTER-MO._.]TOR CONCERNIN. G DEPOSITION...QUESTIONING
                         This matter coming before the Court on the motion of defendants the Secretary of the Inter[or
                and the Assistant Secretary-Indian Affairs (the "interior Defendants"), and any responses thereto, the
                Court finds that the motion should be GRANTED,
                         IT iS THEREFORE ORDERED THAT the Interior Defendants need not respond to any
                discovery requests propourtded by tile Special Master-Monitor and presently pending, and that the
                Special Master-Monitor shall not propound an 3, further discovery on the Interior Det_ndants;
                        FURTHER ORDERED that any dispute concerning an instruction from counsel to a wimess it
               represents that the witness not answer a question during an examination by deposition shall be
               submitted to the Court for resolution, and that the Special Master-Monitor shall not seek during the
               dcposi[ion to compel sttci_ witness to ap, s_x er the qt_cstion [o xx hiclt Iht ob icctien x_ ;_s ;tsscrtcd, or
               threaten counsel making thc objection or the witness with potcndaI disciplinary or oth,er adverse action.

                              SO ORDERED this _ day of               ,2003.

                                                                                        ROYCE C. LAMBERTH
                                                                                       United States District Judge

                  cc:

                    Sandra P. Spooner
                John T. Stemplewicz
                Cynthia L. Alexander
                Commercial Litigation Branch
                Civil Division
                P.O. Box 875
                Ben Franklin Station
                Washington, D.C. 20044-0875
                Fax (202) 514-9163
                Dennis M Gingold, Esq.
                Mark Brown, Esq.
                1275 Pennsylvania Avenue, N, W.
                Ninth Floor
                Washington, D.C. 20004
                Fax (2O2) 318-2372
                Keith Harper, Esq.
                Native American Rights Fund
                1712 N Street, N.W.
                Washington, D.C. 20036-2976
                Fax (202) 822-0068
                Elliott Levitas, Esq.
                I t00 Peachtree Street, Suite 2800
                Atlanta, GA 30309-4530
                Alan L. Balaran, Esq.
                Special Master
                1717 Pennsylvania Avenue, N.W.
                12th Floor
                Washington, D.C. 20006
                Joseph S. KiefFer, III
                Special Master-Monitor
               420 - 7 *t' Street, N.W.
                .-\)>f_rlr_lenl 705
                   \-\'ztshitlgtt)n, D.C. 20004

                                                 IN THE UNITED STATES DISTRiCT COURT
                                                  FOR THE DISTRICT OF COLUMBIA

                ELOUISE PEPION COBELL, et al.,     )
                                                                )
                                 Plaintiffs,          )
                                                                )
                              v.                       )            Case No. I:96CV01285
                                                                )            (Judge Lamberth)
                GALE A. NORTON, Secretary of the    )
                Interior, et al.,                               )
                                                                )
                                 Defendants.        )
                                                                )

                        INTERIOR DEFENDANTS' MEMORANDUM OF POINTS AND
                        AUTHORITIES IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE
                          ORDER AS TO DISCOVERY BY THE SPECIAL MASTER-MONITOR
                                  AND AS IO THE RULE ANNOUNCED BY THE SPECIAL
                           MASTE. R-MON!TOR CONCERNING DEPOSITION OUESTIONINC!
                        The Secretary of thc h-tterior and the Assistant Secretary-Indian Affairs (the "Interior

               Defendants") hereby submit this Memorandum of Points and Authorities in support of their motion,
               pursLtant to Federal Rule of'Civil Procedure 26(c), For a protective order that (I) relieves them of any
               obligation to respond to discovery propounded by the Special Master-Monitor, Joseph S. Kiel[er, Iii;
               and (2) proscribes the Special Master-Monitor t?om implementing a rule he has armounced that would
               enable him to make dispositive substantive rulings at depositions and to compel witnesses, under threat
               of potential disciplinary action against their counsel, to answer questions over tile objections and
               inst[_ction o[thciF cotmscI. :Ks is discussed in dctait t_elox_, it is oppFcssive and tn-_dtt{v bt_rdcnsome tbr
              the Interior DeFendants to bc rcqui_-cd to respond to discovery requests fi-om thc Special Master-
              Monitor because ( 1 ) the Special Nlaster-.:X. lortitor is making the Court a defitcto litigant in the case,

                  independently creating its own record concerning issues that the Court has said it will adjudicate at trial;
                (2) the Special Master-Monitor's pursuit of evidence by propounding his own discovery demands
                conflicts with his responsibility to oversee discovery; and (3) it is unnecessary and tmreasonable for the
                Interior Defendants to be required to respond to discovery demands from both the Plaintiffs and the

                SpeciaI Master-Monitor concerning the same general subject matter. The Special Master-Monitor's
                efforts to issue substantive rulings on discovery disputes arising during depositions, rather than submit
                such issues to the Court for resolution, is beyond his authority and wholly improper. For these reasons,
                the Court should issue an order that discover), by the Special Master-Monitor not be had, and that any
                discovery disputes arising during depositions, including those relating to objections and instructions not
               to answer, be submitted to the Court ibr resolution.
                                                              BACKGRO UND
               A.      The Appointmen. t Of The Special Mas. ter-Monito
                        The Court appointed the Special Master-Monitor by Order dated September 17, 2002 (the
               "Appointlnent Order"). _ The Appointment Order grants the Special Master-Monitor the atttlnority to,
               inter alia:

                        t        The Special Master-Monitor was initially appointed as a Court Monitor on April 16,
               2001, for a tenu o[at least t)nc )'ear. On April 15, 2002. aIier soliciting tlxe parties' comments ntqd
               suggcstiol_$, the Ct>m-t extended this tcnu ._ts "Com't 3_lonito_" 2_r t_nc )'car. Thc interior Dctbndants did
               not consent to the reappointmcnt ruder the tot'ms cst[zt)iishcd by thc Court. See Interior Dctbnqktnts'
               Rcspot_se to Cocf_t et'deL- Dated April 0, 2002 Ree:n-dinz Court Nlonitor (l]Icd Apr, I [, '_   >
               addition, Interior Dclk_ztdants have :q)t)catlcd thc Appoirnnacnt el'cid'. Sec Brier' tbr thc Appellamts (iSled
               Dec. 6, 2002).
                                                                           ,3

                                  regulate ali proceedings in every hearing before the master-monitor and to do ail acts
                                 and take all measures necessary or proper for the efficient performance of the master-
                                 monitor's duties; 2

                               monitor the status of trust reform and the Interior defendants' efforts as they relate to
                                 the duties declared by the Court and prescribed in the 1994 Act; and
                        -       oversee the discovery process in this case and administer document production --
                                 except insofar as the issues raised by the parties relate to IT security, records
                                 preservation and retention, the Department of the Treasury, and Paragraph 19
                                 documents -- to ensure that discovery is conducted in the manner required by the
                                 Federal Rules of Civil Procedure and the orders of this Court. The Special Master-
                                 Monitor shall file with the Court, with copies to defendants' and plaintiffs' counsel, his
                                 report and recomtnendation as to any discovery dispute that arises which cannot be
                                resolved by the parties.
               Appointment Order at _I_/3, 4, 8. The Appointment Order includes no specific provision for discovery
               to be taken by the Special Master-Monitor.
               B.      Discovery. Requests..!ssued By The Sp..e. cial Maste. r-Monito[
                       The Special Master-Monitor has actively participated in the discovery process in this case from
               the inception of his involvement. As Court Monitor, he issued document requests for 42 categories of
               documents from the Interior Defendants.  See Letter from Joseph S. Kieffer, Iit to Sandra P. Spooner
              (May 10, 2002) (requesting production of 25 categories of documents relating to the, Office of
              Historical Trust Accounting) (a true copy of which is attached hereto as Exhibit A); Letter from Joseph
              S. Kieffer, III to Sandra P. Spooner (May 22, 2002) (requesting production of 17 categories of

                       2        In addition to the power to regulate proceedings beIk)re them, masters have the
              aulhot-ity ttndcr Federal Rule et'Civil [q'ocedl, re 53(c) to, inter :tIi_l, cx_tminc winlcsscs and paFtics
              ulid,:l' oz._th and "Fcquit-e thc ]*t't)cttictioll bclk_Fc thc nlz_srcr oi'cvidcncc upc)n zt[I inz_ttcz's cnnbraced in the
              rciL-'rcnce, including the pFOdLIction el'all books, papers, voclchers, doctmncnts, zliltl writings _q)l)licz_bic
              thereto," A master's poxscrs z_rc generally subject to specification and lizxait;_tion by thc order oF
              ret_-irence. See itl.

                  documents relating to the Office of the Special Trustee) (a true copy of which is attached hereto as
                Exhibit B)?
                         The Special Master-Monitor has continued to issue document requests since assuming his

                present role, notwithstanding that the Appointment Order contemplates oversight and administrative

                discovery roles for the Special Master-Monitor. On December 22, 2002, the Special Master-Monitor

                requested the production, by December 31, 2002, of certain documents relating to judgment accounts
                identified by Bert Edwards, the Executive Director of the Office of Historical Trust Accounting
                COHTA"), during his December 18, 2002 deposition, as ',,,'ell as "any other correspondence between

                [former Special Trustee for American Indian Affairs] Mr. Slonaker and his staffand Mr. Edwards and
               his staff regarding the judgment accounts and the OHTA's personnel's [sic] request for the Special
               Trustee's opinion or comments about the judgment accounts' qualification as an historical accounting."
               Letter from Joseph S. Kieffer, ItI to Sandra P. Spooner (Dec. 22, 2002) (a true copy of which is
               attached hereto as Exhibit D). On December 3 I, 2002, the Interior Defendants produced the
               documents that were specifically identii'ied ir_ the Special Master-Monitor's request, and informed him
               that they were in the process of ascertaining whether the Department of the Interior had any other
               documents that fie[[ within the scope of hfs December 22, 2002 request. Letter front Sandra P.

               Spooner to Joseph S. Kieffer, III (Dec. 3 l, 2002) (a true copy of which is attached hereto as Exhibit

                                Thc Special N Ia.stcr-.Munitor ultimately witlxlrcw those requests ai:ter acl,:nowlcdging
               that thc s_bject discovery v, ot;ld "most iii<ely be, to some cxtetlt, addressed by' plaintil'l'_ in their owz_
              discovery I'c_arding_ t)oth thc dele" 1rial'lis'  historical accoumting and 15xillg tile sysIc]"['I [!.Cti\'i[iCS  i12
              preparation for thc Phase 1.5 trial." Se_._X Letter fi-om Joseph S. KieflSr, [{I to Sandra P. Spoortcr (Oct.
               2, 2002) (ct true, copy o t' which is :tttt_che, d hereto [is Exhibit C) at 1.
                                                                      4

                  E). The Interior Defendants withheld two attachments to one of the documents produced on
                December 31 st because they might be privileged, and informed the Special Master-Monitor that they
                would provide a supplemental response concerning those attacl'unents after reviewing them in light of
                the Court's December 23, 2002 Order concerning privilege assertions) Id.
                         The following day, the Special Master-Monitor rejected the notion that the Interior Defendants
                could withhold the subject attachments while considering whether they were privileged, and again
                demanded their production. Letter from Joseph S. Kieffer, IlI to Sandra P. Spooler (Jan. l, 2003) (a
                true copy of which is attached hereto as Exhibit F) at 1-3. He also expanded his initial request to
                include an initial reconciliation and update prepared by Chavarria, Durme & Lamey LLC ("CDL"), s and

                opined that Mr. Edwards's deposition testimony concerning whether the judgment accounts constituted
                an historical accounting had been "thrown into question." I_4. at 3. In that regard, the Special Master-
                Monitor made an additional request for documents or other information that assured Mr. Edwards that
                concerns raised by former Special Trustee Thomas Slonaker as to whether the judgwnent accounts
                constituted an historical accounting "had no basis ill fact." Id. The Special Master-Monitor demanded

               production of all of the documents now covered by his request within 48 hours, id. in response, the
               Interior Defendants reiterated their position concerning the documents reqtJested, but challenged the

                        4       A lhctor necessarily a part of any consideration of the Special Master-Monitor's
               request was the need to protect the information frorn disclosure for purposes of preserving the Interior
               Defimdants' rights with respect to appellate review of Court's privilege ruling. This concern is
               Incightcncd here in light o[thc Special Nlastct_-Nlonitor's pmior public disclosure of privilcgL'd docmnents.

                        '        CDL is all aCCOLlntilqg lirzu hired by OI--ITA to _cx iow _hc Dcpal'ttucnt et' thc h_rcrior's
               accotmting sS'stems, particuhH-iy with regard [o thc accclracy ot']uctgmucnt accounts and per capita
               aCCOtUltS,

                                                                                                  5

                  Special Master-Monitor's apparent assertion of authority to investigate the accuracy of Mr. Edwards's

                deposition testimony. Letter from Sandra P. Spooner to Joseph S. Kieffer, III (Jan. 3, 2003) (a true

                copy of which is attached hereto as Exhibit G).
                        On January 6, 2003, the Special Master-Monitor defended his prior document requests, and
                also expanded his inquiry to include "other correspondence and documents, if they exist, including those
                that would support Mr. Edwards' statements and apparent belief that OHTA and its consultants have

               begun what amounts to an historical accounting." Letter from Joseph S. Kieffer, III to Sandra P.

                Spooner (Jan. 6, 2003) (a true copy of which is attached hereto as Exhibit H) at 4. He again
               challenged the veracity of Mr. Edwards's testimony, and suggested that Plaintiffs' counsel would pursue
               the issue. Id. at 2 ("[i]t can be expected further discovery on the part of plaintiffs' counsel will deal with
               that matter if there is a legitimate question as to the truthfulness of his testimony."). In addition, he
               demanded that the Interior Defendants produce all the requested documents within 24 hot.irs, and
               threatened to refer counsel for the Interior Defendants "to the District Court for appropriate persona[
               disciplinary action" if his demands were not met. Id. at 4.
                        On January 7, 2003, the h'lterior Del:kndants produced additional documents to the Special
               Master-Monitor, but in[ormed him that they needed additional thne to consider his expanded request
               for additional documents. Letter from Sandra P. Spooner to Joseph S. Kieffer, [[! (Jan. 7, 2003) (a
               true copy of which is attached hereto as Exhibit 1). Tile foUowing day, the Special Master-Monitor
               iht'Or-mod tiic Interior Dct:_:ndants tlmt il' thc t,_x o documents that thc Interior Dcl'cndants _ ere reviewing
               ebr prik i[cgc issues wc[c not produced by thc ch;sc ol'bLtsiilcss that day, he xvo[!id itSSl_llllt2 {hill [}lC

                  interior Defendants lq:rd re/hscd [o produce ihcm.  Letter ii-om Joseph S. KicftDr, Ill to Sandra P.

                                                                      6

                   Spooner (Jan. 8, 2003) (a tree copy of which is attached hereto as Exhibit J). The Interior Defendants
                 advised by letter of even date that such an assumption would be incorrect, and that the requested
                 production remained under active review. Letter from Sandra P. Spooner to Joseph S. Kieffer, III

                 (Jan. 8, 2003) (a true copy of which is attached hereto as Exhibit K).
                         On January 15, 2003, Mr. Kieffer notified counsel for the Interior Defendants that, unless
                 certain documents he had requested (or a certification that such documents did not exist) were

                produced by 6:00 that evening, he would "proceed to address [the Interior Defendants'] failure to

                comply with [his] letter requests."  Letter from Joseph S. Kieffer, II[ to Sandra P. Spooner (Jan. 15,
                2003) (a true copy of which is attached hereto as Exhibit L) at 1. In their response of the same date,
                the Interior Defendants reiterated that Mr. Kieffer's document demands required careful consideration,
                and advised him that they would provide a definitive response to his demands by thc end of the week.
                Letter from Sandra P. Spooner to Joseph S. Kieffer, III (Jan. 15, 2003) (a true copy of which is
                attached hereto as Exhibit M). Dissatisfied with that response, and apparently having already decided
                to recommend that the Court take adverse action against the Interior Defendants' counsel personally,
                the Special Master-Monitor in[ormed counsel that, even if they produced the requested documents, he
                would consider such production to be "remedial" in nature. Letter from Joseph S. Kieffer, 1II to
                Sandra P. Spooner (Jan. 16, 2003) (a true copy of which is attached hereto as Exhibit N). On January
                l 7, 2003, the Interior Defendants advised the Special Master-Monitor that the disputed documents
                were privileged and could _lat be disclosed without risking waiver of'those privileges. See Letter fi'om
                Sandra P. Spooncr to .loseph S. Kicl't'cr, ill (,lan. 17, 20(i3) (et true copy oI'_vhich is attached hereto :ts
                Exhibit 0).
                                                                       7

                           [n addition to the foregoing pursuit of evidence, the Special Master-Monitor has also
                commenced an investigation into whether the United States Government is required to provide
                Federally funded legal representation to former Special Trustee Thomas Slonaker. See Letter from
               Joseph S. Kieffer, III to Sandra P. Spooner (Jan. 2, 2003) (a true copy of which is attached hereto as
               Exhibit P). Despite the fact that he had no knowledge, personal or other_vise, concerning the

               procedures that are required to be followed by the Government in determining whether to afford a

               person taxpayer-funded legal representation, he opined that the Government's decision-making with

               respect thereto "smack[ed] of retaliation" and was motivated by "an effort to muzzle [Mr. Slonaker's]
               testimony should he be required to give it in an adversarial legal proceeding or otherwise." id. at 2.
               Indeed, in announcing his investigation, the Special Master-Monitor made clear that he had already
               determined that the Government's actions with respect to Mr. Slonaker's request for Federal legal
               representation "can only be interpreted as retaliation against him," and announced that he would be

               deposing various Department of Interior officials concerning tile alleged retaliation, including Deputy
               Secretary J. Steven Griles, Associate Deputy Secretary James Cason, Director of the Office of indian
              Trust Transition Ross Swimmer, Solicitor William Myers, and Counselor to the Solicitor Laurence
              Jensen. Id. at 2-3.
                       In response to the Special Master-Monitor's demand that the Government provide
              rcprcscniation to Mr. SIo_:_kcr Ltlltt his related allc,_zttions oF bad (Ztitla_ .lcI't}',:v S. Bucl_oltz, Deputy
              Assistant Attornc T GcncraI [or _hc Civil 'Division of tine Departme. nt ol'Justicc, with s_pcr;.'isor>.

                  authority over the Torts Branch, 6 provided the Special Master-Monitor with a lengthy description of the

                procedures that the United States must follow in addressing requests for Federally funded private
                representation, and also included a copy of the standard retention agreement required to be signed by
                indNiduals seeking Federal reimbursement for legal services. See Letter from Jeffrey S. Bucholtz to

                Joseph S. Kieffer, 1[!I (Jan. 10, 2003), attaching "Conditions of Private Counsel Retention by the

                Department of Justice for Representation of Current and Former Federal Employees" (a true copy of
                which is attached hereto as Exhibit Q). Mr. Bucholtz made clear that those procedures were followed
               to the letter, and left no question that decisions by the Torts Branch concerning Mr. Slonaker's
                entitlement to Government-funded representation are made without regard to any potential impact on
               this case. Id. (describing the private counsel program of the Torts Branch and the governing
               regulations, and explaining the Branch's decision as to Mr. Slonaker% request). Among other things,
               Mr. Bucholtz explained that the courts have clearly recognized that Justice Department decisions

               regarding personal representation are not reviewable. Ici. at 2 (citing Falkowski v..Equal Emp.Ioyment
               Opportt. mity Commission, 764 F.2d 907, 9I 1 (D.C. Cir.) (Justice Department's "decision not to

               pro:_'ide [plaintiff] with counsel was within thc agency's unreviewablc discretion."), cert. denied, 478
               U.S. 1014 (1986)). Mr. BuchoItz also offered to respond to any additional questions the Special
               Master-Monitor had.

                       By letter dated January 15, 2003, the Special Master-Monitor posed additional questions to
               the Dcpttty Assistant ),tton_ey Genera theft suggcs[ed Inis view th:ii' thc process by which questions

                       _'       The Torts Branch h:ts authority over requests lbr i:tdividuat-capacity repr'esent,'ltion at
              Fedcral expense.
                                                                      9

                relating to Mr. Slonaker's representation are resolved may be tainted by Mr. Slonaker's potentially
               adverse testimony. Letter from Joseph S. Kieffer, Iii to Jeffrey S. Bucholtz (Jan. 15, 2003) (a true

               copy of which is attached hereto as Exhibit R) at 2-3 ("If the interests of the United States -

               conceivably the Interior and Justice Departments - are not consistent with Mr. Slonaker's, it would

               appear that it would not be in the interests of the Attorney General to provide him representation if his

               testimony at future proceedings might not be positive regarding his knowledge of the Department of
              Interior's trust reform activities."),  tn connection therewith, the Special Master-Monitor requested
              information on how the Deputy Assistant Attorney General planned to address this "apparent conflict."
              Id. at 3.
                       On January 23, 2003, Mr. Bucholtz responded to the additional questions submitted by the

              Special Master-Monitor, and also reiterated that, to the extent the Special Master-Monitor planned "to
              review the propriety of the Justice Department's decision to deny Thomas Slonaker's request for
              reimbursement of private counsel fees relating to his testimony before Congress... the D.C. Circuit
              has held that decisions to deny representation under 28 C.F,R. _i',F 50.15 and. I6 are committed to the

              Attorney General's discretion and are not reviewable." Letter from JeflYey S. Bucholtz to Joseph S.
              KiefYer, [1t (Jan. 23, 2003) (a true copy of which is attached hereto as Exhibit S) (citing Falkowsk[).
              C.      The Rule Announced By The Special Master-Monitor
                      To Compe. 1 The Testimony Of Interior Wit..nesses
                      By letter dated January 2, 2003, the Special Master-Monitor informed the parties of; new rule
             hc was establishing, ctmccrnillg -dope.sit/un questioning, '? Sec Letter fi'om ,[oscph S. KicI'l_l', 111 to
             Tcrrie N1. Petrie, :XIichztel QuintL John Stcmplc_vic and Kcith Harpcm-(.lan. 2.20{)3) (a truc copy el!
             which is attached hereto as Exhibit T). Spccit'ically, after notina fi_at during a recent depositioa, counsel
                                                                     [0

                 for the Interior Defendants objected to a question and instructed the witness not to answer,
               notwithstanding the fact that the Special Master-Monitor viewed the question as proper, Mr. Kieffer
               announced that counsel for the Interior Defendants would face severe consequences if they asserted a
               similar position in any future deposition:
                                 Therefore, in future depositions, should counsel refuse to abide by my
                                  direction on discovery disputes that are unquestionably within my
                                  authority to resolve as granted to me by the Court in its September 17,
                                 2002 Order, including but not limited to thc regulation of deposition
                                 questioning, consideration will be given to terminating the deposition
                                 and fiiing a Report and Recommendation to the Court recommending
                                 an Order to Show Cause be issued requiring counsel to answer why
                                 his or her conduct should not be referred to the Disciplinary Panel of
                                 the U.S. District Court for the District of Columbia for review and
                                 appropriate action pursuant to Rule 8.4(d) of the District of Columbia
                                 Rules of Professional Conduct and why his or her conduct does not
                                 warrant personal monetary sanctions pursuant to Federal Rule of Civii
                                 Procedure 37(A)(4) [sic].
                Id. at 3. In his letter, the Special Master-Monitor did not explain the basis for the purported authority
                he was now elatmmg, other than to quote the provisions in the Appointment Order that grant him the

               power to  re=mare all proceedings in every hearing betbre the master-monitor" and to %versee the

               discovery process" in thc litigation. Sec id. at l, 3. The Special Master-Monitor also did not proffer
               any explanation as to how his assertion that such "discovery disputes.., are unquestionably within my
               authority to resolve as granted to me by the Court in its September 17, 2002 Order," see id. at 3,
               could be reconciled with the Court's express direction that he "file with the Court, with copies to
               dclbndants' and plaintifl_' counsel, his report and recommendation as to any discovery dispute that
               a,iscs which cannot Dc resolx cd by tl_c pa,'tics." Appoin_._ncnl O,'dcr at '.i 8 (crnphasis _tddcd).

                                                                     Il

                                                                      DISCUSSION

                   I.       Relevant Legal Standard

                            Federal Rule of Civil Procedure 26(c) provides that, for good cause shown, a court may issue
                  an order to protect a party from whom discovery is sought "from annoyance, embarrassment,

                  oppression, or undue burden or expense." Such an order may provide that the discovery not be had,
                  Fed. R. Civ. P. 26(c)(1); permit the discovery only upon specified terms and conditions, Fed. R. Civ,

                  P. 26(c)(2); limit the methods by which the discovery may be taken, Fed. R, Civ. P, 26(c)(3); restrict
                  the scope of the discovery, Fed. R. Civ. P. 26(c)(4); or restrict the extent ofdisclosure of the subject

                  discovery, Fed. R. Civ. P. 26)(5-8). 7

                           In assessing good cause, a court is required to weigh severaI different factors, including the

                  need for the discovery by its proponent, the relevance to the litigation, the burden of production placed
                  on the recipient of the request, and the harm that disclosure would cause to the party from which

                  information is requested.  Burka v. Dep't of Health and Hum...an Services, 87 F.3d 508, 517 (D.C. Cir.

                  1996) (citing Federal Op..eh Mkt. Corem'/! of the Fed, Reserve Sv_. v. Merrill, 443 U.S. 340, 362-63

                 (1979)) (other citation omitted). Thus, thc good cause inquiry is a flexible one requiring the court to

                 weigh the various interests involved in the context of the relevant t:actual issues.  United States v.

                 Microsoft Cow,, 165 F.3d 952, 959 (D.C. Cir. 1999) ("Rule 26(c) is highly flexible, having been

                         ?        The protections afforded litigants under Federal Rule 26(c) (and Rule 45(c) in the case
                et'subpoenas) apply to _11 types of'discovery.  See O James W, *loorc, Moore's Fcdcr:fi Pnlcticc
                  20. I!)1 [2][a] (id cd. l_)97) (lbotnote oli_ittcd); see ulso l [:_ldcl-mul_ v. ]_:imllui-st Stutc 5ch. _lIlcl
                HOS_., 559 [-'. Supp. 153 (I_.D. Pa. 19S2) (considering motion to clu;_sh subt)ocnas issued by meister to
                state oftlci.'ds, and qtiashing as to one wirncss); Pathe Ixtb., Inc. v. Du Pont Film Nit',,,. Corp+, 3 F.R.D.
                11, [4 (S.D.N.Y. 1943) (considering motion to qu.'lsh document subpoena issued by Special Master,
               and noting that "Rule 45 should be read in conjtmction with Rule 53 .... "},

                   designed to accommodate alt relevant interests as they arise.") (citing 8 Charles A. Wright and Arthur
                 R. Miller, Federal Practice and Procedure  2036, at 484-86 ([994) ("the existence of good cause
                 for a protective order 'is a factual matter to be determined from the nature and character of the
                 information sought.., weighed in the balance of the factual issues involved in each action.'")) (other
                 citations omitted); Tavoulare..,'3. s v. Washington Post Co., [ 11 F.R.D. 653 (DD.C. 1986) (district
                 court must assess good cause in light of relevant facts and circumstances of the particular case).
                 II.     A Protective Order Is Warranted With Respect
                         To Discovery By The Speci.a..I Master-M. gnitor
                         Discovery requests by the Special Master-Monitor in this case are inappropriate and have

                needlessly imposed a substantial burden on the Interior Defendants, as they have been required to

                simultaneously respond to arduous and at times overZapping discovery' demands by Plainti fils, prepare
                their pIans and associated dispositive motions, and generally prepare for the Phase 1.5 trial, s which the
                Court has said will address the Interior Defendants' efforts as they relate to duties declared by the
                Court and prescribed in the 1994 Act. Rather than adhere to the discovery oversight and trust reform

                monitoring roles for which he was appointed, the Special Master-Monitor has become an active

                participant in the discovery process, thereby making the Court tantamount to a litigant in this case. `)

                                Though Interior Defendants have been preparing for the Phase 1.5 trial, they continue
               to assert their longstanding objection to it (and to the injunctive relief with which the Court has said it
               will conclude, see Cobell v. Norton, 226 F. Supp.2d 1, I48, 152 (D.D.C. 2002)), as beyond the
               _c_)t)c of' tl_c Court's j[ll'isdiction under thc :Xdn//nJstrativc ProccdLll'c :\eL 5 ur.s.c..q 551 et seq.
                                -l'his development is e',cn mo_'c troubling ira tight ot' thc Court's sialcluen[, in its JanL_ary
               LT, 2003 Mctnorandttm and Order, that ir ruccts r%ularly xx.'itl-t the Special N'lastcr-Monitor to, inter
              alia, instrt_ct "tho Monitor wi-rich _[_sk hc should l)cribrm next .... ",,Mcmorandum and Ordcr (filed Jan.
               17, 2003) at 34.
                                                                      13

                    The Special Master-Monitor's actions have atso created an irreconcilable conflict, because he is now a

                  participant in the very process he was charged with overseeing. As a result, the Interior Defendants
                  have been deprived of neutral oversight of the discovery process and a fair hearing on their objections
                  to specific discovery. At the same time, the Interior Defendants are unreasonably being required to

                  respond to both pretrial discovery from the Special Master-Monitor and extensive discovery demands
                  from the Plaintiffs concerning the same general subject matter. This burden is especiaIly unnecessary
                  given that the trust reform issues that are subject to monitoring by the Special Master-Monitor are
                  those the Court has said it will address during tile Phase t.5 triaI in May. For these reasons, the Court
                  should issue a Protective Order that discovery by the Special Master-Monitor not be had._
                          A.      The Sp. ecia_ Maste.r-Monitor Ha.s. Become A De F_lcto L iti.,4ant In The Case
                          The Appointment Order makes clear that the Special Master-Monitor's role in discovery is
                  intended primarily to be supervisory. See Appointment Order at '_I 8 (Special Master-Monitor
                 directed to "oversee the discovery process in this case and administer document production..."). As
                 to trust rctbrm and the Interior Defendants' et'tbrts as they' relate to the duties declared by the Court
                 and prescribed in the t994 Act, his role is strict[>' that ora monitor. Sec id. at _i_i 4-5. Yet, rather
                 than focus on the oversight and monitoring roles set lbrth in the Appointment Order, the Special
                 Master-Monitor has undertaken his own af'finnative discovery campaign against the Interior

                         _)       One commentator has warned of precisely the problems that now plague discovery in
                this case _ts a t'cst, h ol'thc role assumed by thc Special .Xlastct'-Nlonitor:  "Thc usc oI'sp_.'cial master's
                cam aiso ha'_; a disrutctix c ilk)pact on the tl'aditiotlal :zdx crsal iai s,,sicl_: Lilt muster mizht impose
                    mmecessary requirements on thc parties that tend to disturb their case plan and pcrcepli_>ns; Ibc nu_stcr
                might Strlperimposc his or hcr own sense ot' the case v_hcn dctcrn'_itfiz'_g what and how particular
                evidence may bc sought; aud thc actiot_:s ol' thc master may iLl;ratiO Or impede thc attorncv<lient
                relationship." 9 James W. N. loorc, N.'Ioot-c's Fct. lcral Practice _ 53.0412][aj a[ 53-28 (3d ,esl+ I997).
                                                                       /4

                  Defendants. In so doing, he has transformed his position from a supervisoryjudiciai officer to an
                active participant in the discovery process.
                         The nature of the discovery requests issued by the Special Master-Monitor to the Interior
                Defendants illustrates how far afield he has gone in interpreting his role. He has delved into such far-

                reaching areas as the adequacy of judgment accountings completed by OHTA, see Exh. F at 1-3

                (requesting production of documents relating to whether judgment amounts that had been distributed
                to irM beneficiaries were accurate), and the veracity of witness testimony, see id. at 3 & n.2 ("unless
                Mr. Edwards had documents or other information available to him that assured him Mr. S[onaker's
                concerns had no basis in fact, his deposition testimony is also thrown into question"; "Mr. Slonaker's
                final concern in his July 26, 2002 memorandum also puts into question the accuracy of Mr. Edwards'

                testimony..."). Such matters have no bearing on the Special Master-Monitor's responsibility to
               oversee discovery or, for that matter, his authority to monitor the status of trust reform. See Cobell y..
               Norton, 226 F. Supp.2d 1, t58 (D.D.C. 2002) ("the newly appointed special master monitor should
               not oversee or manage the Department's efforts to bring themselves into compliance with the

               obligations declared by the Court and enumerated in the 1994 Act."),
                        The Special Master-Monitor has now gone even further and embarked upon an investigation
               of the Government's regulations and policies concerning the provision of private legal representation at
               Federal expense as they have been applied to Mr. Slonaker. In so doing, he has broadened the reach
               et'his discover: dcn;artds to _;ow include a Dcpttt}' Assist:mt ,-\tto:nc'v Gc_cral who o_ ersccs at
               diox c:nmcn! el'lice xvitll no ,-cspol_sibilit)' l'or this litigaltiozl.  UI:dCl' Cx, cIa tile [llOSt liberal reading el'thc
               Order appointing him, such mat_crs are welt outside the scope of his authority.

                                                                                    15

                              It is improper for the Special Master-NIonitor (and by extension, the Court) to pursue wide-
                   ranging avenues of inquiry through affirmative discovery, and to create for the Court its own
                   independent evidentiary record. The Special Master-Monitor has, in essence, assumed the role of a
                   roving investigator who identifies issues, seeks related discovery, and develops his own record with
                  respect to those matters. Yet the Court did not -- and could not -- vest in the Special Master-
                  Monitor the broad investigatory powers that he has assumed for himself. See Webster Eisenlohr, Inc_
                  v. Kalodner, 145 F.2d 316, 318-20 (3d Cir. 1944) (noting the "fundamental proposition.., that a
                  court's power is judicial only, not administrative nor investigative," and that a special master "has no
                  wider scope of activity than the court itseIf."), cert. denied, 325 U.S. 867 (1945). The Special
                  Master-Monitor's assumption of such authority is at odds with the judicial role a master is intended to
                  play. See Arthur M.t!.rr. ay, Inc. v. Oliver, 364 F.2d 28, 34 (8th Cir. I966) ("from the very nature of
                  the judicial role, it is not given to ajudge to engage in a prospecting quest for other evidence possibility
                  [sic] to add to a record, nor counterpartly [sic] to appoint a master to rnake such a discovery pursuit
                 for him."); sec also Ruiz y,...E.stelle, 679 F.2d l 115, 1162 (5th Cir.), amended in part, 'ocated in part,
                 688 F,2d 266 (5th Cir. 1982) (special master is not an "advocate or a roving federal district court"),
                 cert. denied, 460 U.S. 1042 (1983). Such activities are improper and unnecessary, not relevant to the
                 role for which he was appointed, and unduly burdensome to the Interior Defendants. Accordingly,
                 discovery by the Special Master-Monitor should not be had.
                          B.     Thc Special M_tstcr-N[onitor's Active Participation [n
                                  Disco_cO Conflicts \.\.'{th Elis Oversi,ht RgDponsil._ilit'_.:
                         The Special Master-Monitor's decision to pursue }'tis own discovery has created art inherent
                conllict with his Cou,-t-ordered at_thorirv to o,,crscc and administer' tile discovery process. Ii' thc
                                                                       16

                    SpeciaI Master-Monitor is permitted to continue to develop his own evidence and create an

                  independent record, he can no longer fill the oversight role the Court intended for him because his
                  involvement is transformed into that of an interested party with a stake in the outcome of any dispute.
                           The inevitable quagmire resulting from the active participation of the Court in the discovery
                  process has already come to fruition in this case. Although the Interior Defendants have produced
                  some of the documents requested by the Special Master-Monitor, see Exhs. E, I, they have in good
                  faith objected to other requests. See Exh. O; see generally Fed. R. Civ. P. 34(b) (generally permitting
                  objections to document requests). Because the document requests originated with the Special
                  Master-Monitor, however, the presence ora neutral court adjunct to consider the objections, at least
                  in the first instance, has been frustrated. Indeed, the Special Master-Monitor's response to objections
                 raised by the Interior Defendants has consisted of accusations of bad faith and threats of personal
                 disciplinary or other adverse action against the attorneys representing the Interior Defendants:
                          Further refusal by you to recognize the Court's authority to monitor the interior
                          defendants' compliance with its directives and attgment your incomplete
                          document production cannot be countenaced and may unfortunately resttIt,
                          among other potential recommendations bx' rne, in the referral of your conduct
                          to the District Court for appropriate personal disciplinary action should you
                          again fail, as an officer of the Court, to honor this request.
                 Exh. H at 4 (footnote omitted).
                          Therefore, your refusat to supply the additional documents I have requested is
                         without foundation and constitutes obstruction of the legitimate inquiries of the
                         Court pursuant to its September [7, 2002 Order.
                 ltl. at 3.

                                                                   17

                              Your expressed confusion over your characterization of my 'expansion of(my)
                           original request' is contrived.
                  Exh. j at 2.
                           This letter is to notify you that I will proceed to address your failure to comply
                           with my letter requests unless your document production is supplemented by
                           close of business this evening (6 o'clock p.m.) or I receive an appropriate
                           certification from you that no documents responsive to my requests exist and an
                           explanation of your continued refusal to produce Attachments IV and V, should
                           you fail to produce those attachments.
                 Exh. L at 1.
                           Should you deem to honor my request and produce the responsive documents
                           ... explain your reasons for not producing them, or certify that none others
                           exist, [ will consider that response as remedial action in addressing your past
                           conduct.
                  Exh. N. Such threats and accusations are wrong, the plain intent being to chill the performance of
                  defense counsel's ethical obligation to represent the United States zealously. The choice Mr. Kieffer
                  seeks to force Government attorneys to make -- abandon discovery objections they are ethically
                 bound to assert on behalf of their clients, or face a recommendation for personal disciplinary action --
                 is intolerable and has no place in our system of jurisprudence.
                          The probIems arising from the Special Master-Monitor's dec[sion to develop his own
                 evidentiary record have been compounded by the manner in which he has taken discovery. Aside
                 from the chilling effect of accusations and threats against those who take issue with his legal positions,
                 he has routinely failed to permit tile interior Delkndants suf'ficient time to respond to his requests. See
                 L-Nih. D (roqttcstin Z doctimcl:ts xx ithil_ o (ltl}s}: [-.:.lt. ir (CXJXll_Cl[llg rcclUCSt auld clcna[ulcling pI-odctctioll
                 within 48 hours); Exh. Fl (cxpal:ding request and demanding production wi[lain 24 hotu's); Exh. J ( iF
                 documents are riot received "by close oi' bus/ness this cvcnins, l will assume VOLt have rei'used to
                                                                       1S

                     produce them."); Exh. L ("This letter is to notify you that [ will proceed to address your failure to
                   comply with my letter requests unless your document production is supplemented by close of business
                   this evening .... ").
                           As the foregoing makes clear, the Special Master-Monitor cannot objectively oversee
                   discovery while he is an active participant therein and a party to disputes that inevitably arise during the
                  process. The decision by the Special Master-Monitor to pursue his own evidence from the Interior
                  Defendants, and to attempt to preclude objections to his demands by resort to accusations of bad faith
                  and threats of personal disciplinary action, has created a discovery, regime that makes it impossible for
                  the Interior Defendants to be fairly represented. Tl-fis intolerable burden should be cured by the
                  issuance of a protective order.
                          C.      It Is Unnecessary And Unduly Burdensome For The Interior
                                   Defendants To Be Required To Respond To Discovery
                                   Dem.:ands From Both The S. pecial Master-Monito[ .And Tile Plaintiffs
                          To date, the Plaintiffs have seN'ed eight document requests, seeking 390 categories of
                 documents bearing on every issue in this case. See. Plaintiffs' First through Eighth Requests for
                 Production of Documents. It is unnecessary, and unduly burdensome to tile Interior Defkndants, tbr
                 tlle Special Master-Monitor to be conducting pretrial discovery into areas that were or could be the
                 subject of discovery by the Plaintiffs, particularly given the magnitude of the document discovery
                 conducted by Plaintiffs to date. Compare, e.___, Plaintiffs' Eighth Request fbr Production of
                 Documents, Re. quests Nos. 155-I 62 (sccMng doct_lncnts rch[tin; to thc work efCDL ill rcconcilin<
                jtld._lllC[1[ ;.tlld poi' capita [INI accotnUs), and Exh. F ztt 3 (rcqucst I)y Special Nlastcr-NJoilitor ibr
                reconciliation and update documents prepared by CDL). See Van Wa_cnen v. Consolidated Rail

                                                                       19

                     Corp,, 170 F.R.D. 86, 87 (ND.N.Y. 1997) (precluding unreasonably duplicative and cumulative

                   discovery); Aramburu v. BoeingCo., 885 F. Supp. 1434, 1444 (D. Kan. 1995) (discovery of
                   information that was cumulative and likely duplicative precluded despite likely relevance).
                            By affirmatively issuing his own discovery demands and seeking his own evidence from the
                   Interior Defendants, the Special Master-Monitor has become, in essence, a discovery adjunct for
                   Plaintiffs rather than a neutral discovery master. For example, after Mr. Edwards was deposed by
                   Ptaintzf_, it was the Special Master-Monitor who requested the production of documents that were
                   identified by Mr. Edwards during his deposition, and who then engaged in protracted legal argument
                   with counsel for the Interior Defendants concerning those and other documents. Se.___ee Exhs. D, F, H, J,
                   L and N. It is unnecessary and inappropriate for the Special Master-Monitor to attempt to fill in what
                   he may perceive as discovery gaps in the Plaintiffs' case, or to create his own record independent of
                  that of Plaintiffs. It is fundamentaI that, for litigants, "discovery has limits and.., these limits grow
                  more formidable as the showing of need decreases." United Air Lines, Inc. v..Un, ited States, 26
                  F.R.D. 213,219 n.9 (D. Del. 1960). Given the Court's September 17, 2002 Order lifting restrictions
                  on PIaintifI:_' discovery, and thc scheduling of a trial which tile Court has said will address the status et*
                  trust reibrm and the Interior Defendants' compliance with the trust requirements ordered by the Court
                  and prescribed by the 1994 Act, the need t_br discovery by the Special Master-Monitor is minimal,
                  and lirnits thereon imperative.

                                                                        2O

                      III.     The SPecial Master-Monitor's Claimed Authority To Resolve Discovery
                               Disputes Arising During Depositions, Under Threat Of Disciplinary
                               Action, Is ContraryTo..Th..e Appointment Order And,_!n__ Any Event, Improper
                               The Special Master-Monitor's assertion of the authority to immediately resolve substantive

                     discovery disputes as they arise during depositions is contrary to the express directive of the Court, set
                     forth in the Appointment Order, requiring the Special Master-Monitor to submit any such issue to the
                     Court for resolution. Rather than proceed in the manner set out in the Appointment Order, the Special
                     Master-Monitor has announced his own rule for resolving disputes that arise during depositions
                     relating to an objection and instruction by counsel for the Interior Defendants that a witness not answer
                     a question. The manner in which the Special Master-Monitor has decided to deal with such issues is

                     intended to be immediate, final and dispositive: the witness would be compelled to answer the

                    question, over the objection and instruction of his or her counsel, and the Interior Defendants would be

                    deprived of the opportunity to have the issue decided by the Court after an opportunity to be heard.

                    Moreover, any subsequent review by the Court of the Special Master-Monitor's resolution would be

                    pointless because any information sought to be protected ,,,,.'ill already have been disclosed.  The

                    Special Master-Monitor's rule, and the effect of its emplo?qalent, is at war with the clear language of

                    the Appointment Order and the intent expressed therein that the Court, not Mr. Kieffer, resolve

                    discovery disputes. _ As the Court recognized in its Janua_ I7, 2003 opinion, "although Article III

                   judges may render dispositions on contested substantive issues, the ability to make such deten-ninations

                            !'.        No[' is [lie Spcci:tl N l_stc'r-.Nlon_ituc's t'uIc suppoctcd by his _lttthorit)' to lxlonitor thc
                  status et' trust rctbcm.  Sec :\ppointmcnt Order at '_15 (directing Spcci_l Nlastcc_Monitor to lilt periodic
                  reports with the Court regarding the status ot'trttst retbrm or otller pertinet_t matters, but instructit:g thr_t
                  the "Special Mastec-Mot_itor shall not, however, take any Azctl'_cr actiozl withot,t prior approval of thc
                  Court."),
                                                                               21

                     lies beyond the authority that may properly be referred to special masters."12 Memorandum and
                   Order (filed Jan. 17, 2003) at 16-17 (citing In re Bituminous Coal Operators' Ass'n, Inc., 949 F.2d

                   1165, 1169 (D.C. Cir. 199l); In reunited States, 816 F.2d 1083, 1092 (6th Cir. 1987)).
                           The impropriety of the new rule announced by the Special Master-Monitor is exacerbated by
                   the manner in which he intends to enforce it. Not only does he seek to deprive the Interior Defendants
                  of having substantive disputes that arise during depositions decided by the Court after a fair hearing, he
                  intends to punish counsel for the Interior Defendants for even taking a position that differs from his
                  own. Exh. S at 3 ("should counsel refilse to abide by my direction on discovery disputes.., including
                  but not limited to the regulation of deposition questioning, consideration will be given to terminating the

                  deposition and filing a Report and Recommendation to the Court recommending an Order to Show
                  Cause be issued requiring counsel to answer why his or her conduct should not be referred to the

                  Disciplinary Panel of the U.S, District Court for the District of Columbia for review and appropriate
                  action.., and why his or her conduct does not warrant personal monetary sanctions..."). The

                  troubling propensity the Special Master-Monitor has developed for pursuing his objectives by

                         _2       The Special Master-Monitor's rule is also inconsistent with his recent report requesting
                 that the Court "clarify" his role and explicitly grant him the attthority to "resolve all disputes not involving
                 dispositive issues of fact and law going to the ultimate question of the liability of defendants." Report
                 and Recommendation of the Special Master-Monitor on the Extent of the Authority of the Special
                Master-Monitor to Regulate Alt Phase 1.5 Trial Discovery Proceedings and tile Need for Clarification
                of the September 17, 2002 Order Appointing the Special Master-Monitor (Nov. 15, 2002) at 16. ht
                his report, tine Speci.'fi Master-Monitor acknoxx lodged that, CVell under his proposed il_terprctafion oI'
                his authority, "gcnuillc disputed disl)ositix'e iSSLIOS oi'lhct and !aw... xxill require the Sl)ccial M:tstcr-
                Monitor to prepare a report aitd I'CCOt/lltlCll_.ialiOlt tO thc (_iOUf'[," [ltld thai attorney-client _md
                deliberative process privilege claims "are one example of'such a genuine questio,_ of fact and law that is
                dispositive in nature duc to the potential release o t' attorlley-client and dc lil0erativc process privileged
                in[brmation." Id. att 15.
                                                                        ??

                     threatening adverse actions personally against those who oppose him would lead, in this instance, to a

                   resutt directly at odds with the process established by the Court. Rather than submit to the Court a

                   Report and Recommendation describing the substantive discovery dispute at issue and making a

                   recommendation with respect thereto, as he is required, the Special Master-Monitor would attempt to

                   resolve the dispute without any involvement at all by the Court, and then submit a Report and

                   Recommendation to the Court solely for the purpose of pursuing disciplinary action against the

                   Government lawyer who asserted the objection. The obvious impropriety of such a result well-

                   illustrates why the relief sought herein is necessary and appropriate.
                                                                            '                     r
                                                                                                                                                                                         CONCLUSION
                           For the foregoing reasons, the Court should grant the h-lterior Defendants' Motion for a

                  Protective Order that discovery by the Special Master-Monitor not be had, and that substantive

                  discovery disputes arising during depositions, including tl'LOSe relating to an instruction that a witness

                  not answer a question, be submitted to the Court for resolution.
                  Dated: January 23, 2003
                                                                           Respectfully s ubmitted,
                                                                           ROBERT D. McCALLb_'i
                                                                           Assistant Attorney General
                                                                           STUART E. SCH[FFER
                                                                           Deputy Assistant Attorney General
                                                                           J. CHRISTOPHER KOHN
                                                                           Director

                                                                                         ..          .....                                       -.     ..
                                                                                                                                                                                                     "    SANDRA P. SPOONER  ',
                                                                           Deputy Di[-cctor
                                                                           DC Bar No. 261495

                                                                        23

                                                                                    JOHN T. STEMPLEWICZ
                                                                            Senior Trial Attorney
                                                                            Commercial Litigation Branch
                                                                            Civil Division
                                                                            P.O. Box 875
                                                                            Ben Franklin Station
                                                                            Washington, D.C, 2004470875
                                                                            (202) 514-7194

                                                                        24

                                                               CERTIFICATE OF SERVICE
                           I declare under penalty of perjury that, on January 23, 2003 I served the foregoing Interior
                  Defendants'Motion for a Protective Order as to Discovery by the Special Master-Monitor and
                  as to the Rule Announced by the Special Master-Monitor Concerning Deposition Questioning
                  And interior Defendants'Memorandum of Points and Authorities in Support of its Motion for a
                  Protective Order Concerning Discovery Propounded by the Special Master-Monitor by facsimile
                  in accordance with their written request of October 31,2001 upon:
                  Keith Harper, Esq.                                       Dennis M Gingold, Esq.
                  Native American Rights Fund                          Mark 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 _h Street, N.W.
                Apartment 705
                Washington, D,C. 2000"4
                t202) 47S- 195,S
                                                                           _-v--_--_                                                           ....
                                                                                                       _P. Schmer-el

                                                                 Joseph S. Kieffer, HI.
                                                         420 7 th Street, N.W. 0705
                                                         Washington, D.C.  20004
                          Office: (202) 2084073      Facsimile: (202) 248-9543       Mobile: (202) 321-6022

                                                                  May l0,2002

                           Sandra P. Spooner                   BY FACSIMILE AND FIRST CLASS MAIL
                          Deputy Director
                          Commercial Litigation Branch
                          Civil Division
                          P.O. Box 875
                          Ben Franklin Station
                          Washington. D.C. 20044-0875               Re: Cobell et al. v. Norton et al.
                                                                             Civil Action No. 1:96 CV 01285
                                                                             (Judge Lamberth)
                                                                             First Production of Documents Request-
                                                                             The Office of Historical Trust
                                                                             Accounting
                          Dear Ms. Spooner:
                          This is the first in a series of document requests that I informed you I would be making in
                          my May 7, 2002 letter to you concerning my intention to take a series of depositions of
                          the Interior Defendants' employees over the ensuing months. As addressed in that fetter,
                          I would like to receive all documents responsive to this request in one week; in this case,
                          by May 17, 2002.  In light of the extent of the document production that may be involved
                          in responding to this request, [ will accept production as timely up to and including May
                          24, 2002 as long as the production begins on May 17, 2002. The documents subject to
                          this request should be delivered to thc above address. Your office is familiar with the
                          procedure for dropping off fil/ngs and other correspondence at this address. When a
                          document production has been completed to any letter request, I would request that
                          verification be provided by Defendants pursuant to Local Civil Rule 5.1 that all
                          documents responsive to my request have been produced.
                          This request is considered to be continuing. If Defendants discover additional documents
                          and correspondence responsive to this letter request following their initial document
                          submission on May 17, 2002, those documents and correspondence should be produced
                                                                        [

                                                                                                                                                             EXHIBIT A
                                                                                                              DefendanTs' 01-23-03
                                                                                                                                                     Motion for Protective Order

                              pursuant to this letter request.
                              The time period covered by this request is from the date of the establishment of the
                              Office of Historical Trust Accounting (OHTA), July 10, 2001 to the present date.
                              The terms used in this request and all subsequent document requests axe to be interpreted
                              broadly. For example, "documents" and "correspondence" are to include all forms of
                              communication including e_rnail, facsimiles, typewritten, printed or handwritten
                              memoranda, letters, notes, journals, books, digests, diaries, PowerPoint or other overhead
                              or video presentations, telephone logs, and other forms of recording the substance of
                              relevant communications.
                              "Employee" or "staff' are to include employees working for or detailed to Defendants'
                              offices, their agents, consultants, co-workers or other persons employed or retained in
                              any manner by the Department of the Interior, Department of Justice, any Bureaus,
                              Divisions, or offices of those agencies.
                              Should documents responsive to this request be considered privileged under any privilege
                              including Executive, Attorney/Client, or Work Product Doctrine privileges, please so
                              identify the documents and include a description othem in a privilege log identifying
                             each document's date, the author(s) and recipient(s), its subject (unless considered
                             privileged), its page length, location, office responsible for its retention, and the request
                             to which it is responsive. Please include this privilege log with Defendants' response.
                             Separate copies of all responsive documents and correspondence should be provided to
                             Plaintiffs' counsel within the time period specified above. Privileged documents should
                             be submitted to me alone identified as such and sent separately from non-privileged
                             documents.
                             Should you have any questions about this letter request or about the subject or ex-teat of
                             an individual request, please do not hesitate to contact me.

                             First Request For Documents - The Office of Historical Trust Accounting
                             1.  Any and all documents and correspondence between the Executive Director, OHTA,
                                 Mr. Bert Edwards, and his staff, between Mr. Edwards, his staff, and consultants
                                 (including but not limited to attorneys and accountants, or other contractors), other
                                 Depactment of the Interior (DO[) Bureaus, offices, or their employees, DOI
                                 Solicitor's OfSce attorneys, and Department of Justice attorneys, that discuss or relate
                                 to the stated decision to limit the Comprehensive Plan as described in the "Status
                                 Report to the Court Number Nine" (Ninth Report} at page 71, specifically:
                                                                               2

                               "The Comprehensive Plan will discuss the Department's approach towards account activity
                                     during the Twenty-first Century (Le., the period from January i, 2001, to the present).
                                    Given the breadth of the accounting project, OHTA anticipates that the Comprehensive
                                   Plan will generally describe in what order the accountings will occur and the methodology
                                                                           that will be applied .... "
                                 2.  Any and all documents and correspondence between the above named individuals and
                                     entities listed in request number 1 regarding or relating to the determination of issues
                                     identified at pages 70-7i if the Ninth Report, specifically:
                                                            "Several issues, however, have been determined:
                                           (1) The HistoricalAccounting: OHTA expects that the historical accounting of the
                                                                       IIM accounts will consider the following:
                                                       *   Transactions in an ILM account from the opening_ balance to closure of
                                                               the account, or through December 31, 2000, for active accounts
                                                               (assuming that the scope is unaffected by limiting facto_ such as
                                                                                      statutes of limitation, etc.)
                                                                            *   Revenue posted to an IIM account
                                                             -   Interest credited to an disbursements from an HM account
                                                       .   Supporting documentation including references to ownership interest
                                                               in allotment(s) that generate revenue, interest, and disbursement
                                                                                   transactions in an HM account
                                3.  Any and all documents and correspondence regarding, relating or responding to the
                                     oral presentations and recommendations provided by the OHTA consultants during
                                     and following the February 4-6, 2002 and March 18-20, 2002 conferences "on the
                                     operational aspects of the accounting methods to help facilitate the first series of
                                     accounting projects and subsequent historical accounting projects." Ninth Report at
                                     71-72.
                                4.  Any and all documents and correspondence between the above named individuals and
                                     entities listed in request number 1 regarding, relating or responding to the oral
                                     presentations and oral and written recommendations supplied by the consultants as
                                    described in request number 3.
                                5.  Any and ali documents and correspondence between the above named individuals and
                                    entities listed in request number I regarding or relating to the statement on page 78 of
                                    the Ninth Report over Mr. Edwards' signature that:

                                "The Court Monitor did not meet with OHTA staff during this reporting period."
                         6. Any and all documents and correspondence bctwcen the above named individuals and
                         emities listed in request number 1 regarding or relating to the meeting held by the OHTA
                         staff(including Mr. Edwards, Mr. JeffZippin, and Mr. Stephen Swanson) with the Court
                         Monitor itt OHTA offices on January 22, 2002.
                         7. Any and all documents and correspondence between the above named individuals and
                         entities listed in request number 1 regarding or relating to the advice or recormnendmio_
                         made to OHTA by its consultants and contractors based on their work to date on the
                         "OHTA Projects" as described in the Ninth Report at pages 73-78, regarding:
                            "... the effect of relevant statutes of limitations, the date an account was opened, the effect
                          of probate proceedings for the estate of a predecessor, and prior settlements of IIIVI account
                                                                                    holders' cLaimq, 'l

                                8. Any and all documents and correspondence between the above named individuals and
                         entities Listed in request number 1 regarding or relating to the request for, the receipt of,
                         and discussions about the April 19, 2002 fetter from the General CounseL, General
                         Accounting Office (GAO), Anthony H. Gamboa, to Bert Edwards submitted to the Court
                         in "Notice ofF'ding of April [9, 2002 Letter From GeneraI Accounting Office General
                         Counsel," filed April 23, 2002, to include the letters referred to in Mr. Gamboa's letter,
                         rlame[y.'
                                        Letters from Bert Edwards to GAO dated July t 0 and October 1, 2001 and any
                                 addkional letters sent to GAO or Mr. Gamboa by Mr. Edwards.
                                Correspondence sent under separate cover by GAO to Mr. Edwards or OHTA
                                  addressed by .Mr. Gamboa in his April 19, 2002 letter:
                             "Under separate cover, we will provide you with copies of the written correspondence
                                        exchanged between GAO and Justice, Interior, and Treasury to which we refer in
                                                                                Enclosure 11.' id. at 2.

                                9. Any and all documents and correspondence between the above named individuals and
                         entities listed in request number I regarding and relating to the Letter of Transmittal,
                         dated April 10, 2002 from Clara CLark, Senior Records Analyst, Mill/can and Associates,
                         to Pat Gerald, Office of Trust Records, DOI, attaching a "Findings" page including thc
                         statement:

                         i
                                  _Department of the lnter/or's Response to the Fifth Report oFthe Court Monitor," filed March !, 2002, at
                                16.
                                                                                              4

                                   "Office of Hist0rical Trust Accounting (OHTA) is an OTR user. They are presently
                                  planning audit of tiM accounts (300,000 to 500,000 accounts dated back to 1897) to be
                                                                                    completed by year 3000."
                              A copy of this trara_t_ letter and attachment are included with this request for your
                              reference. This document request can be limited to those responsive documents and
                              correspondence that regard any OHTA or DOI decision, or relate to discussions with Ms.
                              Clark or other consultants or DOI personnel, about when OHTA or DOI expects to
                              complete the historical accounting and/or an auditing of the IIM accounts and why.
                              I0. Any and ail documents and correspondence between the above named individuals
                              and entities listed in request number 1 regarding and relating to and including any OHTA
                              "periodic repons" provided the Secretary of the Interior to update her on the progress of
                              the historical accounting as described to the Court in Defendants' _'Notiee" to the Court
                              fled January 23, 2002 stating in part:
                                "Although no further reports are required by the Secretary, OHTA intend3 to update the
                                Secretary on the progress of the historical accounting through periodic reports." Id. at I.
                              11. Any and all documents and correspondence between the above named individuals
                              and entities listed in request number 1 regarding and relating to any periodic status
                              reports provided to the Director of the Office of Trust Transition, Mr. Ross Swimmer, the
                              Associate Deputy Secretary ofthe Interior, Ma'. James Cason, or the Deputy Secretary of
                              the Interior, Mr. J. Stereo Griles, to update them on the progress of the historical
                              accounting.
                              12. Any and all documents and correspondence between the above named individ-als
                              and entities listed in request number 1 regarding and relating to any meetings,
                              conversations, or briefings involving the Special Trustee and his staffwith OHTA staffor
                              other DO[ or DOJ individuals or entities that led to the Special Trustee's Ninth Report
                              Observations' statement that:
                                                                   "Historical Accounting:
                                        There is a need to outline clearly the actual account information thal will be required to he
                                       presented to each tribal or individual holder (including owners of closed accounts). Further
                                  clarity bi needed on how the various investigative aspects of the historical accounting
                                       project (including the numerous consultants) will be integrated into a process to accomplish
                                            the accounting. The timeframe is rapidly approaching for delivery of the Historical
                                                                            Accounting final plan to Congress."
                                      13. Any and all documents and correspondence between the above named individuals
                             and entities listed in request number 1 regarding and relating to meetings and/or
                                                                               5

                              conversations with the Special Trustee and his staffabout or referring to the Special
                              Tmstee's conclusion contained in his April 30, 2002 memorandum to the Secretary of the
                              Interior, entitled, "Going Forward on Trust Reform. 'a that:
                                 "Because of the incomplete nature of the IIM records and the lack of security measures
                                   designed to protect the trust data in the numero_ data systems employed within the
                                   Department over the years, I do not believe an accounting, as that term is generally
                               understood in the established trust scholarship, acceptable to either the heneficiades or the
                                        Special Trustee can be constructed. Short of a settlement, the best that might be able to be
                               accomplished is the identification of the gaps in the information. With that, the Department
                                            could, perhaps, seek some instructions from the Judge on how to proceed. I remain
                                               concerned, however, that [ have not heard anyone ia the Department define the
                                        characteristics of an accounting to include anything more than the funds actually collected
                                                            by the Department. That, of course, is inadequate." Id. at 3.
                                      14. Any and ali documents and correspondence between the above named individuals
                             and entities listed in request number 1, with the addition of,.he Deputy Assistant
                             Secretary of the Interior for Plans, Management and Budget, Robert Lamb, including
                             correspondence to or from Congress regarding or relating to any discussions and/or
                             meetings with the House Appropriations Commktee staffers including but not limited to
                             Mr. Joel Kaplan regarding actions taken or contemplated being taken by Defendants in
                             preparing the Comprehensive Plan, to do the historical accounting, or in response to
                             Congress' direction to DO[ that:
                                 "... the managers direct the Department to develop a detailed plan for the (accounting)
                                           methodology it adopts, its cost, and benefits, and the degree of confidence that can be
                                                                    placed on the likely results." Ninth Report at 70.
                                     15. Any and all documems and correspondence between the above named individuals and
                             entities listed in request number 1 regarding or relating to any request for a final decision
                             on all or part of the methodology for, or the "temporal scope" of, the historical
                             accounting submitted to the Secretary of the Interior or her staff, the Deputy Secretary, or
                             his staff, or the Dkector, Office of Indian Trust Transition (O!TT) and any response or
                             direction from any &these officials regarding any limitations placed on the methodology
                             or ''temporal scope" of the accounting as those terms have been defined by OHTA in its
                             submissions to the Court.
                             16. All document and correspondence regarding or relating m consultant or contractor
                             responses to any Federal Register or lntemet request by OHIA for bids for consultant or
                             contractor contracts with OHTA on any phase of its kistorical accounting project
                             including but not limited to the proposal of Lindquist Forensics & Partners, Inc., 2121 K
                             2 See Seventh Report of the Court Monilor, Tab 11.
                                                                                                   6

                        Street. N. W., Suite 800, Washington, D.C. 20037.
                         17. Copies of all contracts awarded to consultants and contractors by OHTA.
                         18. Copies of aU status reports or other documents and correspondence concerning their
                        activities furnished by OHTA consultants and contractors to DOI.
                         10. Any and all documents and correspondence regarding information or status reports
                        supplied to the Director, Office of Indian Trust Transition or to the Associate Deputy
                        Secretary by the OHTA staff regarding the progress of the historical accounting.
                        20. Any and all documents and correspondence regarding information or status reports
                        supplied to the Executive Director, OHTA, by his staff.
                        21. Any and all documents and correspondence regarding or relating to any unused
                        OHTA operational funds, the status or,ese funds, and the reasons why they have not
                        been expended to include any reprogramming to other DOI activities.
                        22. Any and all documents and correspondence regarding or relating to the available
                        OHTA headcount, unfilled positions, and the efforts of the Executive Director or his staff
                        to advertise for and fill these positions.
                        23. Any and all documents and correspondence regarding any decision or direction by
                        OHTA staff, the Executive Director, OHTA, the Director, OiTT, the Solicitor's Office,
                        the Associate Deputy Secretary of the Interior, the Deputy Secretary of the Interior, the
                        Secretary of the Interior, or the Department of Justice, to limit thc scope of the historical
                        accounting by time period, records review, funding, or any other means, including
                        decisions or direction that, although not intended to have the effect of limiting the
                        accounting, have resulted in such limitation. This request addresses documents and
                        correspondence not thought responsive by you to request number 15, and, by its terms, is
                        broader than that request.
                        24. Any and all documents and correspondence from any source regarding any decision
                        by the Secretary of the Interior to limit the scope of the h/storical accounting.
                        25. Any and all documents and correspondence from any source regarding a
                        determination or estimation of the cost of the historical accounting or any part of that
                        accounting.
                        Thank you for your prompt attention to this request.

                               Sincareiv_vour6,/   / !

                              cc:     Dennis M. Gingold, Esq.
                                       Keith Harper, Esq.
                                       Elliot Levitas, Esq.
                                       Judge Royce C. Lamberth

               4/I5/2002 17:35 F/LX 202 622 0088            NA._ DC                       _ J KEI_'-"]_R            _00I

                                                             L[rT'I'E_ OF TRAN_;MJl-TA_
                                P,pril 10. 20O2
                                Ms. Pat Gerard
                                Office ol'Tnmt Records
                                United 8tares Depanrnent or the Inl_rlor
                                       of the 8pedal Tm=me far American Ind_ana
                                6301 Indian School Road, NE Suite 300
                                AJbuquenlue. New Mexico a7110
                                Dear Ms. Gerard;
                                In mapons_ to the request rrorn Mr. Cart Hotubbee dated Aprl] 2, 2002 ! am
                                man_-nitt_g the fotkedng documentaU_n mat alscuss me policies, procedures
                               and/or methodo __3[u by which the m_gmtlon of records Is too tare place.
                               Ouanti[y Oescdofion                                  _ b_       Dated                             ::'
                                 I page Llsa_g ar contacts/t_[ephone numbers     Clam Ciark       3/25/02
                                11 '      Notes                                              "              none                                             :
                                 2      Findings                                           "'               '
                               19  '    OTR Records Transfer Plan                      "            4,rS/g2
                                 4       Inwrr_ry Pmce_ Procedure                    "             none
                               5_JouJd you have any q_tlons, ptease do rtot hesitate to contact me.

                               Clam Clark
                               Senior Records ^na]yst
                               Millican and A._octatea
                               Enctosures

                                                                                                         SMREQ0002007

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        Wednesday, May 22, 2002. 12.55 _M                                                                                                                    !o,02

                                                                                                                                                                                                      i..    .

                                                                                                                                                                                                                                                                                                                         i

                                                          Joseph S. Kieffer, III.                                                                     _.,;
                                                        420 7 th
                                                                   Street, N.W. #705                                                                     :_
                                                        Washington, D.C.  20004                                                                    _

                      Office: (202) 208-4078       Facsimile: (202) 248-9543        Mobile: (202) 321.6022

                                                                  May 22, 2002

                      Sandra P. Spooner                     BY FACSIMILE AND FIRST CLASS MAIL
                      Deputy Director
                      Co_d Litigation Brm'_oh
                      Civil Division
                      P.O. Box 875
                      Ben Franklir_ Station
                      WasNnglon, D.C. 20044-0875                Re: Cobelt et ak v. Norton et al.
                                                                               Civil Action No. 1:96 CV 01285
                                                                               (Judge Lambcrth)
                                                                               Second Production of Documents
                                                                               Rcquc._t - Office of Special Trustee                                             !.
                                                                                                                                                                                                      I
                            Dear Ms. Spooner:
                      This b the second in a ._erie_ of document requests that I irffbrmed you I would be
                      making in my May 7, 2002 letter to you concerning my intention to take a series of
                      depositions of'the Interior Defendants' employees over the ensuing months. As
                      addressed in that letter, I would Uke to receive all documents responsive to this request in
                      one week; in this case, by May 31, 2002. The documents subject to this request should
                      be delivered to the above address. Your office is familiar with the procedure for
                      dropping offfil[ngs and other correspondence at this address. When a document
                      production has been completed to any [etrer requesL ! would request that verification be
                      provided by Defendants pursuant to Local Civil Rule 5.1 that all documenta re_pormive to
                      my request have been produced.
                      This request is considered to be continuing. I Defendants discover additional documents
                      and correspondence responsive to this letter request following their initial document
                      submission on May 17, 2002, those documents and correspondence should be produced
                      pursuant to this letter request.

                                                                                                                                EXHIBIT B
                                                                                                                                                             Defendants' 01-23-03
                                                                                                                                                          Motion for Protective Ordcr

               We,:Jnesday Ma22 2002 12,55 PM                                                                                            p.83

                             The terms used in this request and all subsequent document requests are to be interpreted
                             broadly. For example, "documents" and "correspondence" are to include ali forms of
                             communicedon including e-mail, ae$imiIe_, typewritten, printed or handwritten
                             memoranda, letters, notes, journals, books, digests, diaries, PowerPohlt or other overhead
                             or video presentations, telephone logs, and other forms of recording the substance of
                             relevant communications.
                             "Employee" or "staff' are to include employees working for or detailed to Defendants'
                             offices, their agents, consultants, co-workers or other persons employed or retained in
                             any manner by the Department of the Interior, Department of Justice, any Bureaus,
                             Divisions, or o_s efth_se agencies.
                             Should documents responsive to this request be considered ptivlteged under any privilege
                             includLug Executive, Attorney/Client, or Work Proc_uet Docla_e privileges, please so
                             idcnti_y the documents and bclude a description of them in a prMlege log [dent_ing
                             each document's date. the author(s) and recipient(s), its subject (unless considered
                             privileged), its page lengtk, location, office responsible for its retention, md the request
                             to which it is responsive. Please include this prix4lege log vdth Defendants' response.
                             Separate copies of alL responsive documents and correspondence should be provided to
                             Plainti.f_' coun._el within the time period specified above. Privileged documents should
                             be submit'ted to me alone idendSed as such and sent separately fi.om nort-privileged
                             documents.
                             Should you have any questions about this letter request or about the subject or ex'tent of
                             an individual request, please do not hesitate to contact me.

                             Second Request For Documents - The Office of Special Trustee
                             I..amy and all documents and correspoMence maintained in the Orifice of Special
                             Trustee (eST) or by the eST employees regarding or relating to the receipt and/or the
                            preparation of the response to the Secretary of the Interior's (Secretary) memorenda dated
                            April 17, 2002, entitled, 'q'rust Reform," and April 25, 2002, entitled, "Declaration in
                            Support Regarding Response _o the Special Master" addressed at pages 33-35 _nd 70-74
                            of the Seventh Report of the Court Monitor.
                             2. Any and ali documents a.nd correspondence maintained in the Office othe Secretary
                            or Office of the Solicitor or by the employees of these office.q regarding or relating to the
                            prepoxetion oft,he above described rrmmeranda in Request Number l.
                            3. Any and all memoranda, su_naries of briefings, or other corrcspovzlence and
                                                                                2

               Wednesday, May 22, 2002 12. B5 PM                                                                                            p.04

                             documents which the Secretary reviewed or relied on to prepare the memoranda
                             described in Request Number 1.
                             4. Any and ail Lists or notes of meetings and/or other compilations of the attendees at
                             those meetings regarding the preparation of the metuora_::Xa described ia Request Number
                             I including any at wI'xich the Secretary, the Dopey Secretaa'y of the Interior (Deputy
                             Secretary), ttu: Associate Deputy Secretary, the Solicitor, or other DOI attorneys or
                             employees attended.
                             5. Any mad ail correspondence and documents prepared, received, or maintained by any
                             DOI offu:e arut employee regarding or relating to the etatement; of DO./attorney Sa_dra
                             Spooner in her March 29, 2002 memoranda, entitledt, "Cobdl v. Norton," sent to tho
                             Deputy Secretary and Coumetor re the Solicitor, Lin'fy Jensen. quoted at pages 67-611 of
                             the Sere.atE Report.
                             6. Arty end all correspondence and documents prepared, received or maintained by any
                             employee and office within the Office of the Secretary, Deputy Secretary, Associate
                             Deputy Secretary, Solicitor, or Office of the Special Trustee regarding or relating to the
                             Prinelpal Deputy Special Tru-qtoe's April 24, 2002 memorandum, endorsed by the Special
                            Trustee, entitled, "Document Producriorh" and discussed at pages 56-67 of the Seventh
                             Report, and the statement quoted there that:
                               'I w_sh to know why the Solicitor and the Department o[Jastice (DO J) did not share in a
                                timely manner with the Office of Special Trustee (eST) the letter tranamitted March 29_
                                                        21102 by _. Sandra P. Spoo,_er of DOJ ....

                              [_ls. Spooaer's restatement of her due3, of candor apparently does not extend to the Special
                                        Trustee.  Thh situation ia further aggravating because as late as Frid_', April 19, 2002.
                                         seoior officials in the Seeremry'._ Office, and Ms. $pooner, denied the existence of this
                                                                                    document." Id. at 66-67.

                                    7. Any and all documents and correspoudence regarding the dates the Spooner letter,
                            addressed Ln Request Number 5, was distributed and all recpients of that letter Ln
                            addition re the Deputy Secretary and the Counselor re _e Soliciror, Mr, Jenser_.
                            8. Any and all documents and correspondence prepared, received, or maintained by any
                            DO/employee regard_ag or relating to who denied to _h'. Thompson that the Spooner
                            letter, addressed in Request Number 5, existed,
                            9. Arb' and alt documents and correspondence regardin_ or relating to any request ofrhe
                            Secret_? or Dcpw. y Secretary to :he Special Trustee or the Prkacipal Deputy Specia[
                                                                               3

               Wednesday, May 22, 2(102 12,55 PM                                                                                            p.05

                            Tru._tee to provide an explanation or list of the statutory authorities under which the
                             Special Trustee believed he must operate and any docum_ts or correspondence sent by
                            1he Special Trustee or Principal Deputy Special Trustee to any DOI official regarding any                  '  -
                             resporaes to any such requ_ts,
                             10. Any and all documents and correspondence regarding or relating to an), request of
                            the Secretary or Deputy Sec_etaD' to the Interior Solicitor to provide either official a legal
                            interpretation or opinion on the statutory responsibilities of the Special Trustee and any
                            responses to the same or similar requests by attorneys within the Office of the Solicitor.
                             1 I. Any _nd all. documentg and eorrespondenoe _egardhag or rebating to requests trade to
                            or answers received from the Special Trustee regarding b2s or his employees' agreement
                            or disagreement with the substance and conc_usiom of the Sevenfil Report of the Court
                            Monitor
                            12. Any and ail documents and correspondence rcgp4db4 or relating to any adverse
                            personnel plans or actions taken or contemplated by any DOI official La the la.st six
                            months fi.om the date of this letter with respect to the Special Trustee or 0ST employees
                            regarding their present or potential assignments, trmtakr_, promotions, or dL_rv_bm_L The
                            term "adverse" should be interpreted broadly to include any actions or contmnphted
                            actions with which tb.e subject employees would take exception such as a forced
                            relocation, demotion, letter of censure, de[dent performance report, or other actiom for
                            wkich a reasonable rnml would cotuirler his career had or might be negatively impacted
                            by such actions.
                            13. ,*,ny and ali documents and correspondence regarding or relating to any meetings
                            at:ended or br/cfmga n:cciwd by thc Spechl Trustee or his staffregard_g the Office of
                            l--I_orical Trust Accounti.ng'_ (OI--ITA) work on conducting an historical accounting
                            and/or the preparation of the Comprehensive ?lan _s described La Status Report to the
                            Court Number Nine from the Lnception of OHTA/n July 200 [.
                            [ 5. Any and all documents and correspondence Between the gpecial Trustee and the
                            Executive Dkectcr, OHTA, Mr. Bert Edwards, or bet_r_en their staffs, regarding or
                            relating to advice sought from or given by the Special Trustee on the manner of
                            accomplis}fing thc hiatorical accounting or the preparation of the Comprehensive Plan
                            and the Special Tmstee's or his staff's opinions or conclusions a_ut the h/stor[eal
                            accounting as conducted by Mr. Edwards and the OHTA _taff.
                            16. Any and all documents and correspondence between the Special Trustee and the
                            E.,oecutlve Director, OHTA, or between the Specia5 Trugtee and the Director, Office of
                           Indian Trust Transition, or between the/r startS, reg ardLng or relating to the Special
                           Trusrce's con,:lus[on [n his April 30, 2002 memorandum to thc Secretary, enfided,
                                                                               4

              WednesCay, May 22, 20(22 _2.55 PM                                                                                                     P,06

                               "Going Forward On/rust Reform," that:

                                lill_ute ofil_e incomplete mdure of the IIM records anti the lack of any ,ecur'rry mes,_._
                                     designed to protect the trust data in the numerous data system_ employed within the
                                     DepLrtment over the y_rs, I do not believe an accounting, as that term is generally
                                 undera_ood in the es_abllshed trot _cholar_hip. aeceptablQ to oither fha botaol_ci,,r_ea ow' thc
                                 Special Trusiee can be constructed. Short ora settlement, the best that might be able to be
                                accomplished in the identification of the gaps in the information. With that, the Oepa_ tment
                                     could, perhaps, serif sorno inltrucfiuzm from the Judge on how to proceed. ! rcrnain
                                        concerned, however_ that I have not heard anyone in the Department define the
                                 characteristics ofa_ accounting to include anything more than the funds actually collected
                                                   by the Department,  That; ofcourne, b inadequate." ld a[ 3.
                               _7. Any and all ducuments and correspondence rcgarcling or rel,ting to any actiom
                               token, recommendations or decisions made by the Deputy Secretary or his sta.ffregarding
                               tfte Secretary's direction to him, d_cussed in her April 17, 2002 memorandum to the
                               Special Trustee, entitled, "Trust Pc:form," that he review the '5'ehtive performance of
                               OST."
                              Thank you for your prompt attcntitm to thi_ request.

                               $incq'elyFy_,/   _  [  .........._...--_--

                         (\ Jos4 h S. Iqe r,'i
                    cc:      De_is M. G/ngold, Esq.
                                        Kt:irh Harper, Esq.
                                        Etliot Leviras, Esq.
                                        .fudge Royce C. Lamberth

                                                               Joseph S. Kieffer, Eli.
                                                            420 7_' Street, N.W. #705
                                                            Washington, D.C.  20004
                                                                     (202) Z4S-9_3
                        Interior Office: (202) 208-4078  Facsimile: (202) 47g-195a  Cellular: (202) 321-6022
                                                                     October 2, 2002
                        BY FACSIMILE AND FIRST CLASS MAIL
                        Sandra P. Spooner
                        Deputy Director
                    Commerc_ Litigation Branch
                        Chril Division
                        P.O. Box 875
                        Ben Franklin Station
                        Washington, D.C. 201)444875                          Re: CobelI et aL v. Norton et al.
                                                                                        Civil ActionNo. 1:96 CV 01285
                        Dear Ms. Spoonetx.
                        This letter regards the discovery that I, as Court Monitor, propounded on the defergtarrts
                        beginning with my letter to you of May 28, 2002, requesting you consider a protocol for
                        depositions of the defendants' employee& I stayed that div_veryoa May 28, 2002,
                        pending review by the Court of your rejection of that protocol and your refits! to fully
                        respond to the subsequent discovery requests that had been made by me.
                    In recognition of the Corot's September 17, 2002 Memorandum Opinion and the
                        Discovery Relief that Opinion and acco_ying Order provided plaintiff% my
                        discovery is no longer nec____ry as it wlTll most likely be, to some extent, addressed by
                        plaintif_ in their own discovery regardin8 both the defendants' historical accounting and
                        fixing the system activities in prepm'ation _t the Phase 1.5 trial I hereby, therefore,
                        withdraw alt of the Court Monitor's discovery req_
                        Please note that, depending on my monitoring of defendants' progress with their lxamt
                        reform efforts, or !ack of same, I will be filing __dditlonal discovery requests in support of
                        future reports to the Court regarding the strum of the _ oft.he Interior's au.st
                    reform efforts, to include examining any allegations made by defendants' employees
                        regarding the Detmrtn_nt's retaliation against them for their statements made to me or
                        testimony to the Court about the status of defendants' efforts to comply with their Indian
                                                                              1

                                                                                                                                  EXHIBIT C
                                                                                                                              Defendants' 01-23-03
                                                                                                                           Motion for Protective Ordcr

                         trust _uiary obliga6om.
                   Thank you.
                         S'      lyyo
                   '
                      ,_ Jo_ph S. Kieffer, _I_
                         Special Master Monitor
                         cc:     Dennis Gingold, Esq.
                                 Elliot Levitas, Esq.
                                 Keith Harper, Esq.

             $u_C3y, December 2Z 2_02 4 12 PM
                                                                                                                                            p.01

                                                            Joseph S. Kieffer, III.
                                                420 7 _h Street, N.W. #705
                                                Washington, D.C.  20004
                                                       (202) 248-95_
                       Interior Office: (202) 208-4078  Facsimile: (202) 478.1958  Cellular: (202) 321-6022
                                                               December 22:2002
                       BY FACSIMILE AND FIRST CLASS MAIL
                       Sancka P. Spooner
                       Deputy Director
                       Cowanereial Litigation Branch
                       Wa, hin_on, D.C. 20036-2976
                       P.O. Box 875
                       Hen Franklin Station
                       Washington, D.C. 20044-0_75                         Re: Cobell et al. v. Norton et al.
                                                                     Civil Action No. 1:96 CV 01285
                      Oear Ms. Spooner:
                      During tho Edwards' deposition on December 18, 2002: Mr. Edwards made the following
                      statements in answer to Iv[r. Gkngold's questions:
                      "I've seen a feller lom .,Mr. Stonaker that says an historical accounting was not
                      possiblc. 1 believe that was May 5, but t'm not sure.
                      But on Jul}, 26 tn he said the judgment aceountn that w_: did did con.stituta historical
                     accounting."  Edwards' Deposition Tr. at 219.
                     5k. Edwards stated that he had a copy oft.hat July 26_ Ietter. Id  He also stated th,ar the
                     July 26 _' letter was in respo_e to a memorandum that Nfl'. Edwards or his Office of
                     Historical Trust Accounting ("OHTA') sta.ffsent Mr. Slonaker requestLng the Special
                     Tru._tee's comments on the judgment accounts' work done under OHTA auspices. See
                     e.g., Tr. at :221.
                     Pursuant to my authority under the September l 7, 2002 Order appointing rne Special
                     Master-Monitor _o, in part, "monitor the status of trust reform and the Interior
                     defendants' efforts as they relate lo d_e duties declared by the Court and prescribed tn the
                     1994 Act" Id. at 3, _ request you provide me with copies of'the above-cited letter and
                                                                        t

                                                                                                                          EXHIBIT D
                                                                                                                       Defcndants' 01-23-03
                                                                                                                    Motion for Protective Orde

                S_qday, Oecembef 22, 2002 412 PM
                                                                                                                                               p.02

                          memorandum _nd any other correspondence between Mr. Slon_Az'r and his maffand Mr.
                          Edwards and his staffregarding the judgment accounts and the OHTA's personnel's
                          request for the Special Tmstee's opinion or comments about tl_ judgment a_ounts'
                          qualification as an historical accounthlg.
                          ! would apprcciat, receivi_rl these documents by December 31, 2002.
                          Thank you.
                         Slnc mt  ,om'        '

                      '
                         _/oset_h S, K/eft'er, lit.
                          Special M_,_ter Monitor
                         cc:     Dennis Oinsotd , E_q.
                                  Keith Harper, Esq.
                                                                                                                                                               
                                                                                        Elliot Levitas, Esq
                                  Terry Petrie, Esq.
                                  Michael Qui_n, Esq.

                            a

                           ii,,_                                     United States Department of,lustice
                                                                                 Civil Division
                                                                                 Commercial Litigation Branch

                      Simdra P. Spooner                                           PD. Box 875, Ben Franklin Station  Tel: (202) $14-7194
                      Deputy D/rector                                             Washington, DC. 20044-0875        Fax; (202) 307-0494
                                                                                                                    Email:sandra+spooner@usdoj,gov

                                                                                              December 31, 2002

                      BY FACSIMILE
                     Joseph S. Kieffer, III
                     Special Master-Monitor
                     420 7 th
                                            Street, N.W.                                                                                                                   !
                     #705
                     Washington, D.C. 20004
                              Re:     Cobel[ v. Norton
                     Dear Mr. Kieffer:
                                       Your letter of December 22, 2002, requested the following documents:
                                       (I)     A copy of a July 26, 2002 letter from Mr. Slonaker to Mr.
                                                Edwards containing Mr. Slonaker's comments regarding
                                                accountings of judgment accounts, as referenced at page
                                                219 of Mr. Edwards's deposition transcript;
                                       (2)     A copy o f a memorandum sent by Mr. Edwards or the
                                                Office of Historical Trust Accounting ("OHTA") to Mr.
                                                Slonaker requesting his comments on accountings of
                                               judgment accounts, as referenced at page 221 of Mr.
                                                Edwards' deposition transcript; and
                                       (3)     "any other correspondence between Mr. Slonaker and his
                                                staff and Mr. Edwards and his staff regarding judgment
                                                accounts and thc OHTA's personnel's request for the
                                                Special Trustee's opinion or comments about the judgment
                                                account's qualification as an historical accounting."
                             We have no objection to providing the documents described in item numbers 1 and 2, and

                                                                                                                                  EXIIIBIT E
                                                                                                                              Defendants' 01-23-03
                                                                                                                           Motion for Protective Order

                      they are enclosed (SMMREQ 0000001-0000045). Please note, however, that item No. 2 (the
                      July I6, 2002 memorandum) references five attachments. Attachments I through i2I are
                      enclosed. Attachment III contains material subject to the Court's November 27, 1996 Protective
                      Order and therefore, may be examined or used only pursuant to the terms of that Order.
                      Attachments tV and V may be privileged; we will provide a supplemental response upon further
                      review of this material.t We will also ascertain whether [nterior possesses any other documents
                      fitting the description set out in item number 3, and provide a further response to that request.

                              Enclosures
                              cc:     Dennis Gingold, Esq.
                                       Keith Harper, Esq.

                          We have received the Court's December 23, 2002 Order concerning assertions of privilege
                    and we are considering our options in light of that order,

                                                               Joseph S. Kieffer, IH.
                                                            Special Master - Monitor
                                                            420 7 ca
                                                                       Street, N.W.//705
                                                            Washington, D.C.  20004
                                                                     (202) 248-9543
                        Interior Office: (202) 208-4078  Facsimile: (202) 478-1958  Cellular: (202) 321-6022
                                                                     January 1, 2003

                    Sandra P. Spooner
                        Deputy Director
                        Commercial Litigation Branch
                        Washington, D.C. 20036-2976
                        P.O. Box 875
                        Ben Franklin Station
                        Washington, D.C. 20044-0875                          Re: Cobetl et al. v. Norton et al.
                                                                                       Civil Action No. 1:96 CV 01285
                        Dear Ms. Spooner:
                        Yesterday, I received your response to my December 22, 2002 letter request for
                       documents associated with the testimony of Bert Edwards, Executive Director, Office of
                       Historical Trust Accounting ("OHTA") at his December 18, 2002 deposition. However,
                       the information identified either in your accompanying letter or in the documents
                       provided by you was not provided to me in full. Specifically:
                       1) Attachments IV and V to the July 16, 2002 Edwards' memorandum to Thomas
                       Slonaker, Special Trustee for American Indians, entitled "Historical Accounting for
                       7,903 IIM Judgment Accounts," were not released by you. Mx. Edwards described
                       Attachment IV in his memorandum as "OHTA asked its legal trust advisory firm to
                       review the historical accounting work and its letter is Attachment 4 hereto." He describes
                       Attachment V as "OHTA 'also asked its Legal Advisor to review the relevant legal
                       authorities on appropriate reporting to trust beneficiaries, and the results of this review
                       are summarized in Attachment 5 hereto." Id. at 2.
                       You state these attachments may be privileged and that you "will provide a supplemental
                       response upon further review of the material." You also note that the Court bas issued a
                       December 23, 2002 Order concerning assertions of privilege and that you are
                      "consideri_g our options in light of that order."
                                                                             I

                                                                                                                                EXHIBIT F
                                                                                                                                                             Defendants' 01-23-03
                                                                                                                                                         Motion for Protective Order

                      The Court's December 23, 2002 Order specifically addressed communications between
                      trustees and their attorneys regarding the administration ofa msst in consideration of the
                      Interior defendants' motion for a protective order over attorney=client communications
                      and held the following:
                            "Accordingly, where communications between trustees and their attorneys
                         exclusively concern the administration of the trust, no attorney-client privilege is
                            involved because the trust beneficiaries are the attorneys' clients." Id. at 6.
                      Further, the Court held that even if the communications between the trustees and their
                      attorneys involved a combination of administrative and litigation matters, the attorney-
                      client privilege would still not protect the communications:
                           "The Court wig consistent with logic and prevailing authority, recognize the
                        existence of an attorney=client privilege where a trustee seeks legal advice solely in
                       his own personal interest or where the discovery material has been shown to relate
                           exclusively to non-fiduciary matters. But the Court will not immunize every
                       communication with counsel simply because it involved some incidental interest, or
                       benefit distinguishable from, but ancillary to, that of the trust beneficiaries. With
                           regard to litigation-related communications, the Court will not recognize the
                      existence of an attorney-client privilege except where a trustee obtained legal advice
                           sole_ to protect himself personally or the government fi-om civil or criminal
                           liability, an objective that is inherently inconsistent with his or her fiduciary
                               capacity." Id. at I 0, footnotes and citations omitted, emphasis in original.
                     OHTA's requests to ekher its legal trust advisory firm or its Legal Advisor axe descr/bed
                     by Mr. Edwards as requests to review "the historical accounting work" and "the relevant
                     legal authorities on appropriate reporting to trust beneficiaries." These requests and the
                     responses included in the memorandum's fourth and fifth attachments involve in whole
                     the examination of the fiduciary duties of the Secretary - the Trustee delegate - to her
                     IIM account holder trust beneficiaries. Because the requests were made to attorneys
                     working for the Secretary and Mr. Edwards does not make the communications
                     privileged as the Court has now clearly held. t Nor would the attorneys' responses to
                     these requests if they, in part, discussed litigation-related matters involving the judgment
                     accounts' "historical accounting."
                     2) While you have indicated that you plan to provide a supplemental response to my
                     t I would expect that you would not attempt to claim these two documents aro eovexed by the deliberative
                    process privilege having released not only the CD&L's review of the "historical accOUnting '' of the
                    judgment accounts but also Mr. Edwards' July 16, 2002 memorandum which discussed and enclosed these
                    letters, Both of these documents were prepared to address the "historical accounting" or to receive advice
                    about that accounting. The subject letters are contextually for the same purpose.
                                                                          2

                          request following your ascerta/ning whether Interior possesses any other documents
                          fitting the document description provided by me, you have not provided documents that
                         exist regarding what Mr. Edwards or Mr. Slonaker idemified and addressed in their
                         memoranda of July 16, and July 26, 2002. Specifically, both Messrs. Edwards and
                         Slonaker identify the Chavarria, Dunne & Laraey LLC ("CD&L') "initial reconciliation
                         and its update."
                         3) Finally, Mr. Edwards testified at his December 18, 2002 deposition that Mr. Slonaker
                         said on July 26, 2002, "the judgment accounts we did did constitute historical
                         accounting." However, in reviewing Mr. Slonaker's July 26, 2002 memorandum to Mr.
                         Edwards in response to Mr. Edwards' July 16, 2002 request to the Special Trustee for
                         suggestions on the judgment account "historical accounting," Mr. Slonaker mated:
                            "Subject to comments noted below, I have no issue with your assessment that the
                              initial 7,903 IIM judgment accounts comply with the definition of a historical
                                    accounting for these particular accounts." Id. at 1, emphasis added,
                         Mr. Slonaker's referenced comments were concerns expressed by him about whether the
                        judgment accounts' accounting could qualify as an historical accounting because of two
                         missing pieces of information_ First, he could find no indication that CD&L had verified
                         that the judgment amount distributed on a per capita basis to the IIM account holder
                         beneficiaries was the proper mount and, second, the tables included in the Grant
                         Thornton report seemed to indicate that the per capita payments were made in differing
                         amounts to various members of the Tribe which threw into question whether the trustee
                        delegate had dealt impartially with the IIM account holder beneficiaries, [d
                        Thus, unless Mr. Edwards had documems or other information available to him that
                        assured him Mr. Sl0naker's concerns had no basis in fact, his deposition testimony is also
                        thrown into question? Those documents, if they exist, would be subject to release
                        pursuant to my December 22, 2002 letter request_
                        In light of the [ack of any attorney-client privilege over Attachments IV and V and that
                        other documents, as described above, are readily identifiable and are directly covered by
                        my December 22, 2002 letter request to you, please provide those documents to me by
                        close of business Friday, January 3, 2003 in order to comply with my request. 3
                        '- Mr. St{maker's final concern in his July 26, 2002 memorandum also puts into question the accuracy of
                        Mr. Edwards' te_'timony about Mr. Slonaker's affirming thejudgment accounts' "historical accounting:"
                        "Given the acknowledged fact that the Department cannot say with total confidence that it knows
                        everything it should about every account, I have concerns about our abitity to correctly identity every
                        beneficiary of these accounts." lot at 2.
                        -_ I am extending the original suspense date tot responding to my December 22, 2002 l_ter request bocause
                        you received the Court's December 23, 2002 Order on tile atlom_-clim_t privilege decision one day after
                                                                             3

                          Thank you.

                          Special Master - Monitor
                          cc:     Dennis Oingold, Esq.
                                  Keith Harper, Esq.
                                  Elliot Levitas, Esq.

                        my request. However, yoa have now had over a week's opportunity to consider your options regarding
                              Attachments IV and V in light oft.hat Order.
                                                                                                  4

                            _

                                  '_ii_                                               United States Department of Justice
                                                                                                       Civil Division
                                                                                 Commercial Litigation Branch

                      Sandra P. Spoon;                                                       P.O. Box 875, Ben Franklin Station   Tel: (202)514-719,1
                            Deputy Director                                                                            Washington, D.C.  20044-0875              Fax:  (202) 307-0494
                                                                                                                                                                                                   Email: sandra.spooner,_usdoj, gov

                                                                                                                                               January 3, 2003
                      BY FACSIMILE
                      Joseph S. Kieffer, III                                                                                                                 ._
                      Special Master-Monitor
                                                                                                                                                                 !
                                                        420 7 th Street, N.W.
                      #705
                      Washington, D.C. 20004
                              Re:     Cobell v. Norton

                     Dear Mr, Kieffer:
                              On December 22, 2002, you asked us to provide you (1) a copy of a July 26, 2002 [etter
                     from Thomas Slonaker to Bert Edwards containing Mr. Slonaker's comments regarding
                     accounting of judgment accounts; (2) a copy of a memorandum from Mr, Edwards or the Office
                     of Historical Trust Accounting ("OHTA") to Mr. Slonaker requesting his comments on
                     accountings ofjudgrnent accounts; and (3) "any other correspondence between Mr. Slonaker and
                     his staff and Mr. Edwards and his staff regarding the judgment accounts and the OHTA's
                     personnel's [sic] request for the Special Trustee's opinion or comments about the judgment
                     accounts' qualification as an historical accounting."
                              On December 31, 2002, we provided the two documents you identified, z and stated that
                     we would ascertain whether the Department of the Interior possesses any other documents
                     responsive to your requests.

                        :  We also provided three of five attachments to the second document, and stated that the
                    remaining two attachments may be privileged.  We stated that we would provide a supplemental
                    response upon further review of the material.

                                                                                                                                      EXHIBIT G
                                                                                                                                                                     Defendants' 01-23-03
                                                                                                                                                                 Motion for Protective Order

                                On January 1, 2003, you responded that we "have not provided documents that exist
                       regarding what Mr. Edwards or Mr. Slonaker identified and addressed in their memoranda of
                      July 16, and July 26, 2002," notwithstanding that your December 22 letter did not make any such
                      request. Your January 1 letter further expands your initial request to include documents
                      "available to [Mr. Edwards] that assured him Mr. Slonaker's concerns had no basis in fact."
                               To the extent you have now assumed the authority to investigate the accuracy of Mr.
                      Edwards's deposition testimony, or the adequacy of the judgment accountings, we believe your
                      actions exceed those that have been (or could be) authorized by the Court. First, we do not see
                      the connection between your proposed inquiry into the accuracy of Mr. Edwards's testimony or
                      the adequacy of the judgment accountings and your court-ordered authority to "monitor trust
                      reform." Second, we do not believe your authority to monitor trust reform entities you to serve
                      as a roving investigator. The judicial role in our system simply does not include investigative
                      authority. Se_, Arthur Murray, Inc. v. Oliver, 364 F.2d 28, 34 (8th Cir. 1966) ("iF]rom the
                      very nature of the judicial rote, it is not given to a judge to engage in a prospecting quest for other
                      evidence.., to add to a record, nor.., to appoint a master to make such a discovery pursuit for
                      him."); Webster Ejse.ntohr, Inc. v. Kalodn.er, 145 F.2d 316, 318-20 (3d Cir. 1944) (noting the
                      "fundamental proposition.., that a court's power is judicial only, not administrative nor
                      investigative," and "limited to deciding controversies," and that a special master "has no wider
                      scope of activity than the court itself"). Accordingly, "a special master is not at] [plaintiffs']
                      advocate or a roving federat district court." Ruiz v. Estelle, 679 F.2d 1115, 1162 (5th Cir.),
                      amended in part, vacated in part by 688 F.2d 266 (Sth Cir. 1982).
                              We attempted to accommodate your December 22 request because it was not obviously
                     inconsistent with your authority and it sought specific documents that were readily accessible.
                     As your subsequent request suggests that you intend to undertake an inquiry that may be
                     improper, and to which we therefore cannot consent, we request that you provide us (1) notice of
                     the precise scope of the inquiry you intend to undertake; and (2) an explanation of exactly how
                     this inquiry is authorized by the court order appointing you.
                              Thank you.

                                                                                    Sandra P. Spooner

                    cc:      Dennis Gingotd, Esq.
                             Keith Harper, Esq,
              yi_[lqdy, CL_flU_fy UU_ ,_UO O,DD _1                                                                                                                                                               IA94

                                                                                                            Joseph S. Kieffer, III.
                                                    Special Master - Monitor
                                                    420 7 th
                                                                        Street, N.W. 1/705
                                                   Washington, D.C.  20004
                                                           (202) 24g-95&3
                           Interior Office: (202) 2084078  Facdmile: (202) 47&]955  Cellular: (202) :721-6022
                                                                      January 6, 2003
                           Sandra P. Spooncr
                           Deputy Director
                           CommerciM Litigation Branch
                           W, sb2ngtort, D.C. 20036-2976
                           P.O. Box 875
                           Ben Franklin Station
                           Waskinglort, D.C. 20044-0875                         Re: CobeU et al. v. Norton et al.                                  :,
                                                                                       Civil Action No. 1:96 CV 01285
                          Dear Ms. Spooner;
                          This letter responds to your letter of Januexy 3, 2003, refushng to honor my Janum'y i,
                          2003 letter request for the production of additional documems identified in your
                          document production in response to my lettez _equest of December 22, 2002.
                          You have mischaracterized the intent of my letter requests, characterizieg my request for
                          the Edwards' documents as an "investigation of the accuracy of Mr. Edwards' deposition
                          testimony." Though it would appear unnecessary, let me state for the record that my
                          initial Deoembor 22, 2002 request for th_ Edwards and Slonaker correspondence was not
                          to investigate the accuracy of.h&. Edwards' statement that Mr. Stonaker had agreed tkat
                         the judgment accounts' accounting performed by the Off/ce of Historical Trust
                         Accounting ("OHTA"), under Mr. Edwards' guidance, was an "hismr/cat accounting,"
                         but, as part of my monitoring responsibilities, to determine tithe defendants had actually
                         begun an accounting thaz would qualify, at least in the profe.qslonal opln_on of the gpoc_al
                         Trustee, as an historical accounting.
                         My January l, 2003 later request for tim additional documents identifiable from the
                         documems produced to me on December 3 I, 2002 x_s to continue that inquiry. That
                         request was necessary, in part, in light of the thct that the documents produced by you
                         cast doubl on whether the judgment account's accounting could qualify as a start,
                         however nascent, to an h/stor/cal accounting. Nty request for documents that would
                                                                             I

                                                                                                                                     EXHIBIT ti
                                                                                                                                 Defendants' 01-23-03
                                                                                                                              Motion for Protective Orde

                          suppon Mr. Edwards' Testimony at his December 18, 2002 deposition that ,Mr. Slotmker
                          had provided him a letter on July 26, 2002 in wl-rich he "said the judgment accounts that
                          we did did constitute l'fistorical accounting." was to detetmin_ if Mr. Slanaker's eoncem_
                          i_ that sam= J_ty 26, 2002 letter - that the accounting could not qualify as an historical
                         accounting - had been resoh,ed.  My interest was and is whether defendants have begun
                         a.n accounthqg th.at can qual_ a._ a.n historical accounting so that I may make a report to
                         the Court, upon the conclusion of my inquiry, as to the status of the first of many parts of
                         the requisite Interior Department's trust reform obligations. Mr. Edwards' truthfulness at
                         his December 18, 2002, deposition, while e,rpectedly of interest to the plaintiffs' counsel
                         and, if found lacking, the Court, is only of tertiary importance to my man/taring inquiries
                         regarding the statu-q of trust reform and the status of the historical accounting.
                         Thus, I am not mainly concerned with the accuracy ofM.r. Edwards' deposition
                         testimony. It can be expected further discovery on the part of plaintiffs' counsel will deal
                         with that matter if there is a legitimate question as to the truthfulness of his testimony.
                         Neither have I "assumed the authority to investigate ... the adequacy of the judgment
                         accountings" as you have alleged. The Court has already granted me the authority to
                         monitor and report on t_ seams of the Inter[or defendants' trust reform efforts in
                         complying with the Court:s direction in its September l?, 2002 ardor appointing me as
                         Special Master-Monitor, to wit:
                           "4, The Special Master-Monitor shall monitor the status of trust reform and the
                           Interior defendants' efforts as they relate to the duties declared by the Court and
                                                            prescribed in the 1994 Act.
                        5. The Special Master-Monitor is directed to periodically/:lie reports with the Court
                                to ensure that th_ Court and th,, plaintlfl'-s receive complete and accurate
                                information regarding the matters mentioned in paragraph 4." Id at 3.
                        That this monitoring direction included reporting on the status of the historical
                        accounting is obvious by r.he continuing language in the Order in Paragraph 7 that states:
                            "The Special Master-Monitor ._hall file a final report with the Court when the
                         defendants have brought themselves into compliance with their fiduciary duties as
                         declared by the Court and pr_..-scrlbed in the 1994 Act. Thi_ report _hall certify that
                        there is no longer a need for a Special Master-Monitor to monitor the status of trust
                         rcfom and the Interior defendanU' cffort_ as they relate to the duties declared by
                                               the Court and prescribed in the 1994 Act." Id.
                        I doubt that even the Department of Justice woui:l claim at this late date ha thiq litigation
                       that the Interior defendants' duties do not include coming into compliance with the 1994
                       Act's requkement for an accxmnting of all funds owed the tIM account holders, plaintiffs
                                                                           2

                          in this [itigation. Ttmt documc_s revealing the extent of the Interior defendants'
                          compliance with the Court's Orders regarding the historical accounting are clearly
                          subject to my review and reporting authority under the Court'; September 17, 2002 Order
                          directing me to monkor the defendants' trust reform efforts is beyond dispute.
                          The balaacc of your lctt_ can only Ix: viewed as a nmnffesrarion of your continued
                          attempts to obstruct the authority of the Court to delerrrfine thc status of defendants' trust
                          reform efforts and regulate t}_e Phase 1.5 trial discovery, J  Your characterization of the
                         Court as "a plaintiffs' advocate" or "re,bag federal district court," is n,consclonable.
                         Your citation to and quotations of dicta in the case law that would seem to support your
                         position that a court cermet appolnr a ._pecial master to overaee and monitor a party'8
                         compl/,mce with its directives are flawed and rely on cases tlmt are not on point or hold lo
                         the opposite position. In hct, in Ruiz v. stelIe, 679 F.2d l I 15 (5 u_ Cir. 1982), cited by
                         you, the appellate court a.t_?rmedrhe district couzCs decision to appoint a special master
                         to observe and report on a party's compUance with its dgrectives. In a case on all fours
                         with tb./.s Court's appointment of a Special Ma_er-Monitor, the Fifth Circuit stated ia
                         upholding teat appointmem:
                          "The power of a federal court to appoint an agent to supor_'ise thc L,nplemcntatioa
                                                     of its decrees has long been established.

                                (w)e have previousb' approved the appointment of such agents to oversee
                          compliance _'ith contlnaing court orders. Insofar as the apecial master is to report
                           on TDC's compliance with the district court's decree and to help implement the
                          decree, he assumes one of the pinball.frs _ traditional rolca_ cxccpt that, because he is
                         the court's agent, he can and _,hould perform his duties objectively." Id. at 1161-62,
                                                                 footnotes om/tted. 2

                        Therefore, your refusal to supply tM add/tional documents I have requested is without
                        foundation and constitutes obstructfon of the legitimate inquiries oftKe Court pursuant to
                        its September 17, 2002 Order. You tacitly reco_rfized the au;hofity of the Court to
                        t I rear to my January 2, 2003 l_er ent/tle_l. "Special Master-Monitor's Deposition Regulation" res:u-ding
                        your refusal to ge.c.ept The Court's d.i_ection appointing a Special Master-Monitor to regulate tim di._covery
                        _roceed(ngs for the Ph_ 1.5 trial.
                         The FitCh Circuit only found fault with the di_tr;ct ,omi',' appointment order in :hat it did not require tho
                        ;p_iaf master to submit his rq0or_s b_ on formal hearings. Id. at 1162-63. Before I file any trust reform
                       _tatus report to the Court on the Interior rtef_nc_ants' compliance w_rh the Court's dir_ctiv_ regarding
                        _mplemotatioa of an hiat_rieal accounting, Mr. Edward_ ,nd oth_ Interior official_ and cansuttartr,_ _[I
                       have had ample opportunit5, at hearings before me, nt w_ich the panics will be able to at'tend and cro_-
                       exam ina witnesses, to buttress his le._imony resettling Ihe adequacy of his ._urtgm_nt accotmt'_ accounting.
                                                                           3
              _1onc_ay_ J3_U3fy _Jo, 2ul)_ o,_ Axl]                                                                                                                        p.05

                                   oversee the Interior defendants' compliance with its directives on December 3t, 2002 by
                           sapplying me with the initial correspondence and documents I requested. I now have
                           requested additional relevant documents clearly ident/_fed in that production and have
                           ofl;_red the opportunity to you to provide other co_espondence and documents, if they
                           e_st, including tlqose that would support Mr. Edwards' statements and apparent belief
                           that OHTA and its consultants huvc beg'un what amotmts to un t-dstorica! accounting. In
                           light of the Special Trustee's expressed concerns regarding that judga'nent accounts'
                           accounting in his July 26, 2002 memorandum, cited by Ivff. Edwards during his
                           deposition for the proposition that the Special Trustee had a_rmed the historical
                           accounting status of that accounting, this request goes directly to the ex-tent of the Interior
                           defendants' compliance with the Court's directives.
                           Further refusal by you to recognize the Court's aud_ority to monitor the Interior
                           def_rndant_' compliance w/th its directives and augment 3'our incomplete document
                          production cannot be countenanced and may unfortunately result, among other potential
                          recomm_endations by me, in the referral of your conduct to the District Court for
                          appropriate personal disciplinary action should you again fail, as an officer oft_e Court,
                          to honor this request? The listed document_ addressed la my January 1, 2003 letter to
                          you and any other corresp_ndemce and. dot--ts that are responsive tc_ that requo_t and
                                 my December 22, 2002 terter request should be pro,Aded to me by close of bust.ness
                          January 7, 2003 and timely supplemented therea.fter as further documents are bcmed.
                          Shlerly  o  s,  t
                 '
                   ,, .._  Jos'_ph S. Kieffer, III.
                          Special Master- Monitor

                                 cc:     Dc_is Gingold= Esq.
                                  Keith Harper, Esq.
                                  Elliot Levitas, Esq.

                         J "The Special Master-Monitor _ha][ have and shall exercise the powe_ tu regutate all proceedings [n every
                                _.earlng before the master-monitor a,d to do all acrs and ta}.e all meo.ruJ'e_ nccea.,ary or proper for the
                                c?_citJtperfo_'mance of the ma,'tar-monitor 'x dufie4, as set forth ia this order. Yd.. September 17, 2002
                               appointment Order at 3, emphasis adde&
                                                                                                4

                           '*}o'ff!_                                     United States Department of Justice
                                                                                 Civil Divisiot_
                                                                                 Commercial Litigation Branch

                      Sandra P. Spooner                                                               PO Box 875, Ben Franklin Station   Tel: (20.!) 514-7194
                                Deputy Director                                                                  Washington, D.C. 20044-0875            Fa,t: (202) 307-0'194
                                                                                                                                                                        Email:sandra.spooner_usdol gov

                                                                                                                           January 7, 2003

                      BY FACSIMILE
                      Joseph S. Kieffer, Iii                                                                                                                  i
                      Special Master-Monitor
                      420 7 'h Street, N.W.
                      #705
                      Washington, D.C. 20004
                              Re:     Cobell v. Norton

                     Dear Mr. K.Jeffer:
                              This replies to your letter of January' 6, 2003. We indicated in our letter of December 31,
                     2002 (which initially responded to your request and provided you with the two specific
                     documents you identified) that we would respond further once we had ascertained whether the
                     Department of the Interior possessed additional documents responsive to your request. Your
                     .lanuary [, 2003 and January 2, 2003 letters expanded the scope of your request to include not
                     only "correspondence" as initially requested in your December 22, 2002 letter, but also
                     "documents or other information available to [Mr. Edwards] that assured him Mr. Slonaker's
                     concerns had no basis in fact[.]" Letter from Special Master-Monitor to Sandra P. Spooner,
                     January, 1,2003, at 3. This, coupled with your reference to Mr. Edwards' testimony, caused for
                     us a concern that your inquiry was no longer limited to your monitoring trust reform but now
                     included an investigation into Mr. Edwards' credibility, which we maintain is beyond the scope
                     of your powers as Special Master-Monitor.
                              Your January 1,2003 letter twice questioned Mr. Edwards' truthfulness and tken placed
                     thc burden on Interior Defendants to produce documents to demonstrate otherv,.'ise:
                                       Thus, unless Mr. Edwards had documents or other information
                                       available to him that assured him Mr. Slonaker's concerns had no

                                                                                                                                     EXHIBIT I
                                                                                                                                 Defendants' 01-23-03
                                                                                                                              Motion for Proteclive Order

                                      basis in fact, his .deposition testimon_is atso thrown int.o, question.
                                      Those documents, if they exist, would be subject to release
                                      pursuant to my December 22, 2002 letter request.
                    id..._:. (emphasis added).
                                      Mr. Slonaker's final concern in his July 26, 2002 memorandum
                                     also puts into question the accuracy .o..f Mt. Edward' testimony
                                     about Mr. Slonaker's affirming the judgment accounts' "historical
                                     accounting[.]"
                   Id. at 3 n.2 (emphasis added). As you point out in your most recent letter, to the extent his
                   credibility ever becomes an issue, "plaintiffs' counsel will deal with that matter." Letter from
                   Special Master-Monitor to Sandra P. Spooner, Jan. 6, 2003, at 2.
                            To the extent that your letters have identified specific additional documents relevant to
                   trust reform, such as the Chavarria, Dunne & Lamey LLC ("CD&L") initial reconciliation and its
                   update, they are attached (SMMREQ 0000046-70).  Please note that these documents contain
                   materials that are subject to the Court's November 27, 1996 Protective Order and therefore may
                   be examined or used only pursuant to the terms of that Order. Notwithstanding the manner in
                   which your January 1, 2003 request is framed, this release of documents should not be construed
                   as a supplement to or explanation of Mr. Edwards' deposition testimony.
                            Your January 6, 2003 letter appears to expand your request even further than your
                   January 1, 2003 expansion of your December 22, 2002 request. Your January 6 letter states that
                   you have now "offered the opportunity to [us] to provide other correspondence and documents, if
                   they exist, including those that would support Mr. Edwards' statements and apparent belief that
                   OHTA and its consultants have begun what amounts to an historical accounting." Letter from
                   Special Master-Monitor to Sandra P. Spooner, Jan. 6, 2003, at 4. You asked us to respond to
                   your Janua D' 6 letter within one business day. We need additional time to consider this further
                  expansion of your original request.
                                                                                  Very truly yours,

                                                                                  Sandra P. Spooner

                  [Enclosures]
                  cc:     Dennis Gingold, Esq.
                           Keith Harper, Esq.

                                                                Joseph S. Kieffer, IH.
                                                             Special Master - Monitor
                                                             420 7 th
                                                                        Street, N.W. #705
                                                             Washington, D.C.  20004
                                                                      (202) 24s-9543
                         Interior Office: (202) 208-4078  Facsimile: (202) 478-1958  Cellular: (202) 321-6022
                                                                      January 8, 2003
                         Sandra P. Spooner
                         Deputy Director
                         Commercial Litigation Branch
                         Washington, D.C. 20036-2976
                         P.O. Box 875
                         Ben Franklin Station
                         Washington, D.C. 20044-0875                          Re: CobeH et al. v. Norton et aL
                                                                                        Civil Action No. 1:96 CV 01285
                         Dear Ms. Spooner:
                         Your January 7, 2003 letter to me forwarding the Chavarria, Dunne & Lamey initial
                        reconciliation and its update states that "(t)o the extent your letters have identified
                         specific additional documents relevant to trust reform.., they are attached." I beg to
                        differ.
                        My letters have clearly indicated since December 22, 2003 what I have requested from
                        you and your letters in response have addressed those documents. The first set of
                        documents I requested in my January 1, 2003 letter to you were "Attachments IV and V
                        to the July 16, 2002 Edwards' memomdm to Thomas Slonaker, Special Trustee for
                        American Indians .... "You specifically addressed these two attachments ia your
                        December 31, 2002 letter to me in which you enclosed two of the documents I had
                        requested in my December 22, 2002 letter. You have failed to produce Attachments IV
                        and V.
                        My requests, in addition to seeking the documents you have released and the two noted
                        above that you have not released, have consistently addressed any other documents that
                        might be responsive to and explain further Mr. Edwards' apparent belief that the
                       judgment accounts' accounting can qualify as an historical accounting even in light of
                        Mr. Slonaker's concerns regarding the accuracy of those accounts' accounting. As I
                        stated in my December 22, 2002 initial letter request, "I request you provide me with
                                                                              1

                                                                                                                                    EXHIBIT J
                                                                                                                                Defendants' 01-23-03
                                                                                                                             Motion for Protective Order

                          copies of the above-cited letter and memorandum andany other correspondence between
                          Mr. Slonaker and his staff and Mr. Edwards and his staff regarding the judgment
                          accounts and the OHTA _s personnel's request for the Special Trustee's opinion or
                          comments about the judgment accounts' qualification as an historical accounting."
                          You have been aware since January 1, 2003 of my request for Attachmer_ts IV and V to
                          Mr. Edwards July 16, 2002 memorandum to Mr. Slonaker. Your expressed confusion
                         over your characterization of my "expansion of(my) original request" is contrived. You
                         cominue to withhold documents that I have clearly requested you provide me.
                         IfI do not receive Attachments IV and V by close of business this evening, I will a._ume
                         you have refused to produce them. As I slated in my January 6, 2003 letter, you may
                         provide whatever other documents you find are relevant to my letter requests in a timely
                         ma/incr.

                                     S incerety yo ur%
                                         :                                                                                                                                                                            i
                                                       4.
                                                                                                    ,'   t      '    

                                                                 JosePh S. Kieffer, iI_'.
                        ' Special Master- Monitor
                         cc:     Dennis Gingold, Esq.
                                  Keith Harper, Esq.
                                  Elliot Levitas, Esq.

                                  .

                                   _,_                                     United States Departmenl of Justice
                                                                                 Civil Division
                                                                                 Commercial Litigation Branch

                      Sandra P, Spooner    .......          P.O. Box 8'75. Ben Fr_i_ii'n"'Statinn  %:i- (202) 514-7194 .......
                      Deputy Dircclor                                                                                           Washington, D.C  20044-0875             Fax:  (202) 307-0494
                                                                                                                                                                                                                                    Ernail:sandra.spooner@asdoj.gov

                                                                                     January8,2003

                      BY FACSIMILE
                      Joseph S. Kieffer, III                                                                                                                 i
                      Special Master-Monitor
                      420 7 m Street, N.W.
                      #7O5
                      Washington, D.C. 20004
                               Re:     Cobell v. Norton

                     Dear Mr. Kieffer:
                              This replies to your letter of today, January. 8, 2003, in which you state, among other
                     things, "If [ do not receive attachments IV and IV [to the July 26, 2002 Memorandum] by the
                     close of business this evening, I will assume you have refused to produce them." That
                     assumption would be incorrect. Whether we will produce or not produce those documents is still
                     a matter under consideration and we will provide a supplemental response as soon as possible.

                                                                                     5'iery)_rul.Y2yurs'       ') ;/.)

                     cc:     Dermis Gingold, Esq.
                              Keith Harper, Esq.

                                                                                                                                  EXHIBIT K
                                                                                                                              Decndants' 01-23-03
                                                                                                                           Motion Ibr Protectixe Order

        Wednosda,, January 15, 2003 9.05 AM                                                                                                                  p.02

                                                                          Joseph S. Kieffer, iii.
                                                        Special Master - Monitor
                                                        420 7 *h
                                                                  Street, N.W. #705
                                                       Washington, D.C.  20004
                                                                (202) 248-9543
                                                                                                                                                           i   :
                     interior Office: (202) 208-4078  Facsimile: (202) 478-1958  Cellular,' (202) 321-6022                              !
                                                                                                                                                           i
                                                               Janmu3_ 15, 2003
                     Sandra ?, Spoon_
                     Deputy Dkecror
                     Coram_cL._l Litlga6on ]3ranch
                     Washington, D,C. 20036-2976
                     P.O, Box 875
                     Bert Fr_in Station
                                                                                                                                                               i
                     Wa._hington, D.C. 20044-0875                         Re' Cobe]/et aL v. Norton et al.
                                                                                 Ckql Actio, No. [:96 CV 01285
                     Dear Ms. Spooner:
                    Your January 8, 2003 letter response to my lanua.9' 7, 2003 letter (agaM requesting that
                    you complete )'our production of at }east the documents responsive to my January l, 2003
                    letter request) stated in part: '"_q_ether we will produce or not produce those documents is
                    still a matter under consideration and we will provide a supplemental response as soon as
                    possible."  You also stated that I should not presume that, should i not receive any
                    response from you by the close of busis,,ess on January 8, 2003, you had no{ refused to
                    produce them.
                    It is now $anuary 15, 2003, and I have had no response from you either providing me
                    with Attachments IV and V to the July 16, 2002 Bert Ed,a'a'ds memorandum to Thomas
                    Slonaker or any other documents responsive to my earlier December 22, 2002 initial
                    letter request. Nor have you informed me that defendants have no other responsive                                     t
                    documenls or that, for whate;'cr rea_om you will not provide me with the requested                                     i
                   documents,                                                                                                                        i
                   This letter is to notify you that I will proceed to address your failure to comply w/th my                                 i
                   letter requests unless your document productivn is supplemeated by close of business this
                   evening (6 o:clock p.m.) or i receive _n appropriate certification from you that no
                   documents responsive to my requests exist and an explanation of your continued refusal
                   to produce Attacluments Ix, / and V, should you fail to produce those attadenents.
                                                                       l

                                                                                                                                                                  EXHIBIT L
                                                                                                                            Defendants' 01-23-03
                                                                      '          '-                                        Motion for Protective Orde

                Wednesday, January 15, 3'003 905 AM                                                                                                                  p,03

                                      Sh'tc_relv yqurs,,

                           Special Master - Monitor
                           cc:     Dennis Oingold, Esq.
                                  Keith Harper, Esq.
                                  Elliot Levitas, Esq.

                            ' ,r

                           _._                                     United States Department of Justice
                                                                                  Civil Division
                                                                                  Commercial Litigation Branch

                      Sandra P. Spooner                                                               PO. Box 875, Ben Franklin Slation   Tel: (202) 514-7t94
                                 [)ep_ty Director                                                                  Washington, D.C.  20044-0875            Fax: (202) 307-0494
                                                                                                                                                                         Emait:sa.ndra _povncr(_)_usdoj.gov

                                                                                                                                         January 15, 2003
                      BY FACSIMILE
                      Joseph S. Kieffer, III
                      Special Master-Monitor
                      420 7 'h Street, N.W, #705
                      Washington, D.C. 20004                                                                                                           ._
                               Re:     Cobell v. Norton
                      Dear Mr. Kieffer:
                               Your letter of this date states that we have not provided you with "any other responsive
                      documents to [your] earlier December 22, 2002 initial letter request," We respectfully disagree.
                      In fact, on December 31, 2002, we provided you with thc July 26, 2002 memorandum from Mr,
                      Slonakcr to Mr. Edwards and the July 16, 2002 memorandum from Mr. Edwards to Mr. Slonaker
                      [SMMREQ0000001-O000045], which were directly responsive to your request for
                      correspondence. In response to your subsequent expanded request, on January 7, 2003, we also
                     provided you with the CD&L initial reconciliation and update [SMMREQ0000046-O000070].
                              For the reasons set out in our previous letters on this subject, your demands raise issues
                     that require careful consideration. Your decision to supplement plaintiffs' discovery with your
                     own, for example, places us in an untenable position. As our foremost duty is to represent the
                     United States to our utmost ability, we state again that we have not had sufficient time to resolve
                     the issues raised by your requests. As for your request for Attachments IV and V to the July 16,
                     2002 Edwards Memorandum, we believe that we will be able to respond definitively by the end
                     of this week.

                                                                             J   Sandra P. Spooncr             q
                     cc:     Derails Gingold, Esq.
                              Keith Harper, Esq.

                                                                                                                                    EXHIBIT M
                                                                                                                                 Defendants' 01-23-03
                                                                                                                              Motion for Protective Order

                Th,.:rsd_y, ..,Lanuary 16, 2003 12,31 Pl"d                                                                                                      p,02

                                                                         Joseph S. Kieffer, III.
                                                          Special Master - Monitor
                                                          420 7 t_ Street, N.W.//705
                                                         Washington, D,C.  20004
                                                                  (202) 248-9543
                                Interior Office: (202) 208-4078  Facsimile: (202) 478-1958  Cellular: (202) 321-_;022
                                                                January 16, 2003
                          Sandra P. Spooner
                          Deputy Director
                          Commercial Litigation Brmazh
                               \Va_,,kington, D.C. 20036.2976
                          P.O. Box 875
                         Ben Fraaklin Station
                         Washington, D.C. 20044-0875                       Re: CobeU et aL v. Norton et al.                               ;
                                                                                 Civil Action No. 1:96 CV 01285
                               Dear Ms. Spooner:
                         In light of your January t5, 2003 letter's renewed refusal to comply witk my letter
                         request of the same date, and its mischaracterization of the substance of my
                         correspondence addressing your failure to comply with my documen! production
                         requests, I will proceed as ind/cated in my letter.
                         Should you deem to honor my request and produce the responsive documents including
                        Attachments IV and V, explain your reasons for nol producing them, or certify that none
                        others exlsl, I will consider that response as remedial action in addressing your past
                        conduct.
                        Sincerely )'ours,        _ /'       . ....
                                           /,     '-T-,
                Joseph,. _<mrrer, 111.
                             Special Master - Mortitor
                        cc:     Dennis G/ngold, Esq.
                               Keitlx Harper, Esq.
                               Elliot Lev/tas, Esq.

                                                                                                                        EXItlBIT N
                                                                                                                                              Defendants' 01-234)3
                                                                                                                               -          Motion for Protcctivc Order

                                                                                  United States Department of Justice
                                                                                           Civil Division
                                                                           Commercial Litigation Branch

                  S'io_n_ra P. Spoon'er   ...............
                                                                                           PO. Box 875, Ben Frm_:lin'St'=tion   Tel: (202) 514-7i94 ....
                      Deputy Director                                                     Washington, D.C. 20044-0875          Fax: (202) 307-0494
                                                                                                                                    Email:s andra, s pooner_usdoj.gov

                                                                                                          January l7,2003
                 BY FACSIMILE
                 Joseph S. Kieftkr, III
                 Special Master-Monitor
                 420 7 th Street, N.W, #705
                 Washington, D.C. 20004
                          Re:     Cobell v. Norton
                 Dear Mr. Kieffer:
                         We are unable to comply with your request for copies of'Attachments IV and V to the
                 July 16, 2002 Edwards Memorandum because they are protected by the attorney client privilege,
                 the detiberative process privilege and the work product doctrine. These documents are described
                 in the Memorandum.
                         As you know, the Court issued an opinion on the attorney client privilege on December
                ,._,v- 2002. The Department of Justice has not yet made a final decision as to whether the
                Defendants wit1 appeal from that order. Until that decision is made, we cannot disclose matters
                protected by the attorney cIient privilege because we must avoid taking action that would waive
                the privilege. Plaintiffs have recently sought a ruling by the Court on the applicability of the
                deliberative process and the matter is now awaiting the Court's ruling. Until it is finaIly resolved,
                we cannot waive the privilege by disclosing deliberative information.

                                                                             Very trtttbyours,     _"_      .....
                                                                              .L .              _     r_ %,       '": .....
                                                                                                                                                                                                                                  i -: _
                                                                                                                                                                                                                   '_:  '-           '7';."':- .vL' .""' ........ ' ..............
                                                                                                                                                                    _' Sandr:t P. Spooner
                   cc:     Dennis Gingold, Esq,
                        Keith Harper, Esq.

                                                                                                                           EXHIBIT O
                                                                                                                                                  Defendants' 01-23_03
                                                                                                                                              Morion for ?rotclive Order

                Thursday, d3nuary OZ 2003 1:24 PM                                                                                     p,02

                                                            Joseph S. Kieffer, III.
                                                          Special Master - Monitor
                                                          420 7 t_
                                                                   Street, N.W. #705
                                                         Washington, D.C.  20004
                                                                  (2o2) 2ds-gs,t3
                          Interior Office: (202) 208-4078  Facsimile: (202) 478-1958  Cellular: (202) 321-6022
                                                                 January 2, 2003

                          Sandra P. Spooner
                          Deputy Director
                          Commercial Litigation Branch
                          Washington, D.C. 20036-2976
                          P.O. Box 875
                          Ben Franklin Station
                          Washington, D.C. 20044-0875                       Re: Cobetl et aL v. Norton et al.
                                                                                 Civil Action No. I:96 CV 01285
                          Dear Ms. Spooner:
                         It MS been brought to my attention that you have informed Ntt. Tom SIonaker, the former
                         Special Trustee :[or American Indmns, that the Torts Branch of the Civil Divi,sion has
                         resolved his requests for representation and that any further request for legal
                         representation by him must be submitted anew to the Department of the Interior. [
                         specifically refer to your letter of December 20, 2002, in response to his December 13,
                         2002 letter to you advi._Lng you of his continued requirement for legal representation in
                         tight of'r.h_ Department of Justice's refusal to pro,ddt that rc'-prscntation.
                              Apparently, the Depa.mmnt of Justice has seen fit to narrow reimbursement for b_is legal
                         representation to the Special Mazte'r's deposition during last summer. This would seem
                         to overlook the fact teat plaintiffs' counsel have the fight under the procedures
                         estahtLdaed by the Special Master to eontLnue the deposition of Mr. Slonaker at which
                         defendants' attorneys may cross-exam/ne him on matters addressed by the Special Master
                         or plaintiffs' counsel.
                         His initial request for represemation was based on your letter to him dated May 20, 2002,
                         in which you stated: "Accordingly, because it appears that your [nteresls may not be
                        entirely consistent with those of the United States, you nmy vdsh to obtain your own
                        counseL" Whatever you exactly meant by that statement, Jt clearly indicated that Mr.
                                                                        1

                                                                                                                         EXHIBIT P
                                                                                                                      Defendants' 01-23-03
                                                                                                                   Motion for Protcctive Orde

                             Slonaker's conduct or statements, or both, during his government service were in some
                             manner inconsistent with what was expected ofhim by his superiors including=
                             potentially, the President of the United States. Iris subsequent dismi_ by the Secretary
                             of the Interior on behalf of the President would indicate that his Rather participation in
                             the Cobell v. Norton litigation, at the request of any party or judicial official, would, as
                             you informed him, requke counsel to represent him.
                             It is hlg_y unlikely that .Mr. S[onaker's participation in the instant litigation is at an end.
                            it is much more likely that either plaintiffs or I will need to depose Mr. Slonaker in the
                            course of Phase 1.5 trial preparations or trust reform monitoring, respectively. For that
                            matter, others may de;ire id; te._tknony in one or more forums that will require lagal
                            representation. The Senate Committee on Indian Affairs requested his testimony this
                            summer for which counsel represented him and for whom reimbursement was denied by
                            the Department of Justice following preparation arid delivery of that x,,zitten and oral
                            testimony.
                            The juxtaposition of)'our inference to Mr. Slonaker as a Department of Justice attorney
                            that counsel was required to protect his interests which were at odds ,a/th those of the
                            govenunent, - supposedly thc De'partrnent of Interior - .ruefieo Departrtmnt coun,.5ol'$
                                   recent mfi/sal to continue tc pay for that legal representation, and your present position
                            that he must reapply to the Department of Interior ffhe desires fimher representation,
                            smacks of retaliation and an attempt to control ik_. S!onaker's potential testimony
                           through withholding or limiting that legs/representation.
                           I v-rote to you on October 2, 2002 in conjunction with my withdrawal of my outstanding
                           discovery requests to the Department of the Interior that i would be "examining any
                           allcgation_ rrmdc by defendants' employees regarding thc Department's rctal.lation
                                   against them for trek' statements made to me or testimony to thc Court about the s_atus of
                           det_ndants' efforts to comply with their Indian trust fiduciary obl/gations." Mr.
                           Slonaker, in his December 13, 2002 letter to you, has now indicated his belief that the
                           government's position on his legal representation and the range of issues, in addition to
                           the Special Master's deposition, that he has addressed and may likely need to address
                           through testimony "underline the fact that it is both punitive and non-productive to
                           hobble my contributions by ;limiting k:gal representation to a skngle deposition."
                           Denying preariously authorized legal representation to Ntt. Slonaker by i.nitially limiting
                          that representation to a single deposition and now requiring him to reapply for legal
                          representation to the agency for whom he worked and with whom he has been told by
                          you he has inconsistent interests can only be interpreted a.s retaliation against him. It also
                          is clearly an effort to nmzz[e his testimony should he be required to give it irt an
                          adversarial legal proceeding er otherwise. Any deposition ofl_5'. Slonaker -plaintifl_,
                          defendants or m/ne - wil/enable both the defendants' and plaintiffs' counsel to attend
                                                                              2

              Thu,_sda, January OZ 2003 1.24 PM                                                                                             p,04

                            and cross-exam/ne Mr. Slonaker. The Department of Justice's denial to the former
                            Spech.l Trustee of legal reprcscmatior_ conditioning farther representation on the
                            approval nfthe Department of Interior's Solicitor's office, wkieh i_ under the gupv.vv_on
                            by one of the named defendants in the Cobell litigation - the Secretary of the Interior -
                            can only be viewed as a patent attempt to LLm_it his ability to receive legal guidance and
                            representation Io his potemial legal and financial detriment. This action on your part, or
                            that of the defendants hi this litigation, is not only retaliation agair_t h/m but interferes
                            with the Court's and plaintiffs' ability to obtain his unfettered testimony about the
                            defendants' trust reform efforts during his tenure at the Department of Interior.
                            If you would care to comment on your agu:l the Department ofJu._tiee attomey,s' and
                            Interior defendants' employees and attorneys' past actions regarding Mr. Slonaker's legal
                            representation ara[ your position regarding providing him reimbursement for his
                            attorneys' past legal representation and fature reimbursement for ti'iai representation
                            please do so prior to close of business January 10, 2003. Following that date, and
                            depending on your response, _ will begin my investigation of defendants' employees' and
                            attomey_' possible retaliation against the former Special Trustee and that reta/.iation's                                  i
                            impact on the Court and plaintiffs' ability to receive l-tis full and complete cooperation
                            and testknony.
                            In that regard, please provide me with altemate dates in January' and February 2003 when
                            the following officials wilI be available for deposition by me on this issue and other
                           related issues: Deputy Secretary of the Interior J. Steven (3riles, Associate Deputy
                            Secretary of the Interior James Cason, Director of the Office of Indian Trust Transition
                            Ros._ Swimmer, Interior Solicitor WilLiam Myers, and Courzselor tu the Solicitor
                           Laurence Jenson. I will schedule one day of&position for each deponent. Plaintiffs and
                           defendants' counael will be allowed to attend _ cross-exam/ne each deponent.
                           Sincerely yours,      t P.

                      '
                        ,_ Josepl4. S. Ki:ffcr. III.WV
                           Special Master - Morfitor
                           t Denying Mr. Slon_ker reimbursement f_r his attorneys' legal fee_ will require him to pay those roes
                           himself for his counsel's pa_l representation and any future legal advice and representation he made
                           require regardinl the CobeIl Iitieation_ Th, Hobson's choim left him by the Departments of Ju_tice and
                           hnterior is to either suffer significant financial logs or go without legal representatitm for fi.tture legal
                           proceedings at which he [s required to testify. The obviom _olution for him would be to avoid where
                           pog_ibte ._uch proceedings and _o limit his testimony to ensure he would not later be subject to further
                           costly legal pr_eodi.r,,gs bi,.qed on that testimony_ This solution and the choices given him by you are
                           unacceptable in the conlext of the Cobetl litigation and the Court's and piaintiffs' petentia) need for h[s
                           teatimony about hia profegsional and personal knowledge of the key trust reform isue_ in that 2tigation.
                                                                               5
                                                                                                                                             p_05
               Th_rsd:vi, January 02., 2005 '_ 24 PM

                                 ce:     Dennis G'mgold, Esq.
                                  Keith H_rper, Esq.
                                   ELliot Levites, Esq.
                                   3ame_ Schaller, Esq.
                                   Benjami_ Jacc-wicz, Ex/.

                        :_,_,_                                                   U.S. Department of Justice
                                                                                       Civil Division

                       Deputy Assistant A_lorney General                                                   Washmgtan, D C, 20530

                                                                                                                             January 10,  2003

                        Joseph S. Kieffer, HI
                        Special Master - Monitor
                        420 Seventh Street, N.W. # 705
                        Washington, DC 20004-2213

                                Re:     Etouise Pepion Cobell v. Gale Norton, et al,                                                                 ;
                                         C.A. No. 96CV1285 RCL (D.D.C.)

                       Dear Mr. Kieffer:
                                Your letter to Sandra Spooner of January 2, 2003, concerning decisions related to the private
                       representation at federal expense of Thomas Slonaker in the Cobelt litigation was forwarded to me for
                       response in my capacity as the Deputy Assistant Attorney General with supervisory authority over the
                       Torts Branch in the Civil Division. The Torts Branch has responsibility for considering requests for
                       individual-capacity representation submitted by federal employees in legal proceedings arising from
                       conduct performed within the scope of their federal employment and for reviewing billings whenever
                      private representation is afforded to an employee at federal expense. All issues regarding the approval
                       and federal reimbursement of private counsel for representation of Mr. Slonaker in the Cobell litigation
                      were addressed by the Torts Branch.
                               Before discussing Mr. Slonaker, it may be helpful to describe briefly the private counsel
                      program implemented by the Torts Branch. Ail requests for the retention and payment of private
                      counsel to represent federal employees in their individual capacities are governed by 28 C.F.R. 
                      50. l 5 &. 16. To obtain representation under these regulations, an employee or former employee must
                      submit a written request to the employing agency, which must forward the request to the Civil Division
                      with an accompanying "recommendation for or against providing representation."  50.15(a)(I). The
                       O           I
                                             a=ency s "statement shoutd bc accompanied by ali available factual information." Id. Although receipt
                      of the employing agency's recommendation is an integra[ part of the Justice Department's procedure for
                      considering representation requests under these regulations, the Justice Department is not bound by the
                      employing agency's recommendation and may grant a request for representation even if the employing
                      agency recommends against doing so.

                                                                                                                                     EXHIBIT Q
                                                                                                                                  Defendants' 01-23-03
                                                                                                                               Motion for Protective Order

                            Pursuant to the regulations, the Justice Department may approve the retention of private
                    counsel to represent a federal employee in an individual-capacity matter "subject to the availability of
                   funds" and only when "the actions for which representation is requested reasonably appear to have
                   been performed within the scope of the employee's employment and the Attorney General or his
                   designee determines that providing representation would othe_vise be in the interest of the United
                   States."  50.15(a) and. 16(a). When an emptoyee is authorized to retain private counsel, federal
                   reimbursement for services rendered is limited "to fees incurred for legal work that is determined to be
                   in the interest of the United States. Reimbursement is not available for legal work that advances only
                   the individual interests of the employee."  50.16(d)(t),
                            The critical determination under the regulations of when it serves the interests of the United
                   States to afford representation is a matter committed to the discretion of the Attorney General. The
                   regulations do not define or set forth any controlling standards for this determination. Accordingly, the
                   D.C. Circuit held in Falkowski v. Equal Employment Opportunity Commission, 764 F.2d 907, 911
                   (D.C. Cir.), cert. denied, 478 U.S. 1014 (1986), that the Justice Department's "decision not to provide
                   [the plaintiff] with counsel was within the agency's unreviewable discretion." The Court emphasized that
                   "Congress gave DoJ broad, discretionary, authority to provide federal employees with private counsel,"
                   and that decisions concerning whether and how to provide individual-capacity representation to federal
                   employees "involve the allocation of an agency's scarce legal resources" and thus are "better left to the
                   expertise of the agency than of the courts." Id___.
                            In ail cases in which retention of private counsel is approved, the attorney retained by the
                  employee must sign a standard retention ageement in order to receive federal reimbursement for legal
                  services. This agreement, entitled "Conditions of Pr/rate Counsel Retent{on by the Department of
                  Justice for Representation of Current and Former Federal Employees," in each case defines and limits
                  the representation for which payment is authonzed.  The agreement warns that "it]he Department will
                  not honor bills for services that the Department determines were not directly related to the defense of
                  issues presented" by the authorized representation (se....__e attached copy of the standard agreement at p.
                  1); the Department will not pay for "any legal work that advances only the individual interests,of the
                  employee" (id.); and the Department "will not reimburse se_'ices deemed reasonably necessary to the
                  defense of an employee if they are not in the interests of the United States." Id._, at p. 2. The agreement
                  also instructs counsel that "[t]o avoid confusion over whether the retained attorney may bill the
                  Department for a particuIar service under this retention agreement, the retained attorney should consult
                  the Justice Department attorney assi=m'ted to the case.., before undertaking the service." Id.
                           In addition to the referenced restrictions and warnings, the standard agreement contains many
                  limitations on reimbursement of legal expenses, including caps on hourly rates and billable hours and
                  restrictions on a wide range of common charges.  Id_.._.:. at pp. 2-3. When private counsel bills are
                  received by the Torts Branch, they are carefully scrutinized to ensure compliance with all provisions oF
                  thc a_eement.  Although the review process may be time-consuming and many of the caps and
                  limitations may not comport with the going rate in the private sector in some areas of the country, they

                       were implemented by the Civil Division as reasonable measures to monitor and control private counsel
                       expenditures. Without tight controls and strict enforcement of the retention agreement, the scarce funds
                       available to the Justice Department for the retention of private counsel for federal employees could
                       prove inadequate to meet the extensive demands presented each year in a ,,vide array of litigation
                       throughout the Nation.
                                As your letter notes, Mr. S[onaker made a representation request to the Solicitor of the
                       Department of Interior. After reviewing the submitted information in accordance with 28 C.F.R. 
                       50.15 and. 16, the Department of Justice approved Mr. Slonaker's request lbr private counsel at
                       government expense to represent him with regard to the Special Master's deposition subpoena to him in
                       Cobell. Your letter suggests that Mr. S[onaker must submit a new representation request to the Interior
                       Department in the event his deposition in Cobell is continued or reopened. This is not the case.
                       Because private counsel at government expense ,,vas approved for Mr. S[onaker for his deposition
                       before the Special Master, the authorization and retention agreement in his case covers representation
                       directly related to that deposition, including any continuation of it, though it does not cover other
                       matters. ,am employee or former employee who wishes to receive representation for testimony before a
                      congressional committee must submit a request for the same to his employ/ng agency, which the agency
                      will consider and then forward with its non-binding recommendation to the Justice Department in
                      accordance with 28 C.F.R.  50.15(a)(!.).
                               Your letter incorrectly suggests that a decision regarding reimbursement was made in an effort
                      to retaliate against or punish Mr. Slonaker for some position he took in the Cobell litigation or in an
                      attempt to control or restrict his future testimony or cooperation. The Torts Branch does not have any
                      responsibility for or involvement in the substantive defense of the Cobetl litigation, and any potential
                      impact on that litigation played no role in the decision to provide Mr. Slonaker private counsel at
                      government expense for representation at his deposition or to deny his request for reimbursement of
                      attorney's fees relating to his congressional appearance.
                               To the extent that your letter requests that the Justice Department provide you with additional
                      information relating to its deliberations and decision-making process concerning the representation
                      decision made in regard to Mr. Stonaker, 28 C.F.R.  50.15(a)(3) prohibits the Justice Department
                      from providing this information. It states: "Attorneys employed by any component of the Department
                      of Justice who participate in any process utilized for the purpose of determining whether the
                      Department should provide representation to a federal employee, undertake a full and traditional
                      atton_ey-client retationship with the employee with respect to the application of the attorney-client
                      privilege." Additionally, a detailed discussion of this matter would not be appropriate in light of the
                      D.C. Circuit's holding in Falkowski that decisions denying individual-capacity representation under 28
                      C.F.R. _ 50_ 15 and. 16 are committed to the Attorney General's discretion and are not reviewable.

                                I hope this letter has addressed your concerns about [his matter.  Please contact me if you have
                       additional questions,
                                                                                               Sincerely,

                                                                                               Jef_ey_oltz

                      cc:     James Schaller
                               Dennis Gingold
                               Keith Harper
                               Elliot Levitas
                            /43enj amin Jacewicz
                            V' Sandra Spooner

                                                                                4

                                              CONDITIONS  OF  PRIVATE  COUNSEL  RETENTION
                                        BY  THE  DEPARTMENT  OF  JUSTICE  FOR  REPRESENTATION  OF
                                                      CURRENT  AND  FORMER  FEDERAL  EMPLOYEES

                                   The  following  items  and  conditions  shall  apply  to  the
                         retention  of  a  private  attorney's  legal  services  by  the
                         Department  of  Jusnice  to  represent  current  and  former  federal
                         employees  in  civil,   congressional,   or  criminal  proceedings.
                         !.      NATURE  OF  RETENTION

                                  Subject  to  the  availability  of  funds,   the  Department  of
                        Justice  agrees  to  pay  an  attorney,   or  other  members  of  his  or
                        her  firm,   for  those  legal  services  reasonably  necessitated  by
                        nhe  defense  of  a  current  or  former  federal  employee
                         (hereinafter  "client")   in  civil,   congressional,   or  criminal
                        proceedings.
                                  The  Department  will  non  honor  bills  for  services  that  the
                        Department  determines  were  not  directly  related  to  the  defense
                        of  issues  presented  by  such  matters.     Examples  of  services  for
                        which  the  Department  will  not  pay  include,   but  are  not  limited
                        to:
                                  a.     administrative  claims,   civil  actions,   or  any
                        indemnification  proceedings  against  the  United  States  on
                        behalf  of  the  client  for  any  adverse  monetary  judgment,
                        whether  before  or  after  the  entry  of  such  an  adverse  judgment;
                                  b.     cross  claims  against  co-defendants  or  counterclaims
                        against  plaintiff,   unless  the  Department  of  Justice  determines
                        in  advance  of  its  filing  that  a  counterclaim  is  essential  to
                        the  defense  of  the  employee  and  The  employee  agrees  that  any
                        recovery  on  the  counterclaim  will  be  paid  to  the  United  States
                       as  a  reimbursement  for  the  costs  of  the  defense  of  the
                       employee;
                                 c.     requests  made  under  the  Freedom  of  Information  or
                       Privacy  Acts  or  civil  suits  against  5he  United  States  under
                       the  Freedom  of  Information  or  Privacy  Acts,   or  on  any  other
                       basis,   to  secure  documents  for  use  in  the  defense  of  _he
                       client;
                                 d.     any  legal  work  that  advances  only  the  individual
                       interests  of  the  employee;   and
                                 e.     certain  administrative  expenses  noted  in  paragraph
                       nu:Tkber  4  below.

                                The  retained  attorney  is  free  to  undertake  such  actions
                          as  set  forth  above,   but  must  negotiate  any  charges  with  the
                          client  and  may  not  pass  those  charges  on  to  the  Department  of
                          Justice.

                                    THE  ABOVE  LIST  IS  NOT  EXHAUSTIVE[    The  Department  of
                          Justice  will  not  reimburse  services  deemed  reasonably
                          necessary  to  the  defense  of  an  employee  if  they  are  not  in  the
                          interests  of  the  United  States.
                                   To  avoid  confusion  over  whether  the  retained  attorney  may
                         bill  the  Department  for  a  particular  service  under  this
                          retention  agreemenn,   the  retained  attorney  should  consult  the
                         Justice  Department  attorney  assigned  to  the  case,   mentioned  in
                         the  accompanying  letter  before  undertaking  the  service.

                         2.       BILLABLE  HOURS
                                   The  Department  of  Justice  agrees  to  pay  the  retained
                         attorney  for  any  amount  of  time  not  exceeding  120  billable
                         hours  per  month  for  services  performed  in  the  defense  of  the
                         c!ient.    The  retained  attorney  may  use  the  services  of  any
                         number  of  attorneys,   paralegals,   or  legal  assistants  in  his  or
                         her  firm  so  long  as  the  aggregate  number  of  billable  hours  in
                         any  given  month  does  not  exceed  !20  hours.     The  client  is
                         free,   however,   to  retain  the  attorney,   or  members  of  the  firm,
                         to  perform  work  in  excess  of  120  hours  per  month  so  long  as
                         the  firm  does  not  bill  the  excess  charge  to  the  Department  of
                         Justice.
                                   The  Department  will  consider  paying  for  services  in
                         excess  of  120  hours  in  any  given  month  if  the  press  of
                         litigation   (e.g.,   trial  preparation)   clearly  necessitates  the
                        expenditure  of  more  time.     The  retained  astorney  must  make
                        requests  for  additional  compensation  to  the  Department  in
                        writing  in  advance  of  such  expenditures.
                        3.       LEGAL  FEES
                                  The  Department  agrees  to  pay  the  retained  attorney  up  -o
                        $200.00  per  lawyer  hour,   plus  expenses  as  described  in
                        paragraph  4  below.     The  charge  for  any  services  should  not
                        exceed  the  retained  attorney's  ordinary  and  customary  charge
                        for  such  services.     This  fee  is  based  on  the  consideration
                        that  the  retained  attorney  has  been  practicing  law  in  excess
                                                                                       -2-

                       of  5  years.
                                   In  the  event  the  retained  attorney  uses  the  services  of
                         other  lawyers  in  his  or  her  firm,   or  the  services  of  a
                         paralegal  or  legal  assistant,   the  Department  agrees  to  pay  the
                         following  fees.
                                   a.     Lawyer  with  more  than  5  years  practicing  experience:
                                           $200.00  per  lawyer  hour

                                   b.    Lawyer  with  3  -  5  years  of  practicing  experience:
                                           $160.00  per  lawyer  hour
                                   c.     Lawyer  with  0   -  3  years  of  practicing  experience:
                                           $133.00  per  lawyer  hour

                                   d.     Paralegal  or  legal  assistant   (or  equivalent):
                                           $78.00  per  hour.

                                   The  Department  of  Justice  periodically  reviews  the  hourly
                         rates  paid  to  attorneys  retained  to  defend  federal  employees
                         under  28  C.F.R.     5C.16.     If,   during  the  period  of  this
                         agreement,   the  Deparnment  revises  the  schedule  of  hourly  rates
                        payable  in  such  cases,   the  Department  will  pay  revised  rates
                         for  services  rendered  after  the  effective  date  of  the  revision
                         in  rates.
                        4.       EXPENSES
                                  While  the  Department  will  pay  normal  overhead  expenses
                        actually  incurred   (e.g.,   postage,   telephone  tolls,   travel,
                        transcripts),   the  retained  attorney  must  itemize  these
                        charges.     The  Department  will  not  accept  for  payment  a  bill
                        that  shows  only  a  standard  fee  or  percentage  as   "overhead".
                        The  retained  attorney  must  describe,   justify,   and  clear  IN
                        ADVANCE  unusual  or  exceptionally  high  expenses.
                                  In  addition,   the  retained  attorney  must  describe,
                        justify,   and  clear  in  advance  any  consultations  with  or
                        retention  of  experts  or  expert  witnesses.
                                  The  retained  at. torney  must  secure  advance  approval  to  use
                        computer-assisted  research  that  involves  charges  in  excess  of
                        $500.00  in  a  given  month.
                                  The  retained  attorney  must  separately  justify  and  obtain

                                                                                       -3-

                        advance  approval  for  services  such  as  printing,   graphic
                          reproduction,   or  preparation  of  demonstrative  evidence  or
                          explanatory  exhibits.
                                    The  retained  attorney  must  itemize  and  justify  in-house
                          copying  costs  exceeding  $150.00  in  a  given  month.     The
                          Department  will  pay  up  to  a  per  page  copying  cost  of  $.15  per
                          page.
                                    The  retained  attorney  mush  itemize  and  justify  facsimile
                          transmission  costs  exceeding  $150.00  in  a  given  month.

                                   The  Departmen[  will  pay  expenses  such  as  secretarial
                         overtime  or  the  purchase  of  books  only  in  exceptional
                         situations.   The  retained  attorney  must  obtain  advance  approval
                         for  such  expenditures.
                                   Travel  expenses  may  not  include  first  class  service  or                                  !
                         deluxe  accommodations.     The  retained  attorney  may  not  bill
                         time  spent  in  travel  unless  it  is  used  to  accomplish  tasks
                         related  to  the  litigation.     The  retained  attorney  must
                         specifically  identify
                         such  tasks.
                                  The  Department  will  not  pay  for  meal  charges  not  related
                        to  out-of-town  travel.
                                  The  Department  will  not  provide  compensation  for  client
                        or  other  entertainment.
                                  The  Department  will  not  pay  expenses  for  meals  incidental
                        to  overtime.
                                  The  Department  will  not  pay  for  expenses  that  can
                        normally  be  absorbed  as  clerical  overhead,   such  as  time  spent
                        in  preparing  legal  bills  and  filing  papers  with  the  Court.
                       The  retained  attorney  must  separately  list  and  justify
                       messenger  services.
                                 The  retained  attorney  must  enumerate  the  expenses
                       incurred  for  hiring  local  counsel  by  rate,   hour,   and  kind  of
                       service.     These  hours  must  fall  wl_hln  she  120-hour  monthly
                       maximum.     The  hourly  rates  paid  to  local  counsel  may  not
                       exceed  the  rates  listed  in  paragraph  3  above.

                                                                                      -4-

                       5.       FORMAT  OF  BILLS

                                   The  retained  attorney  must  submit  bills  on  a  monthly
                         basis,   stating  the  date  of  each  service  performed;   the  name  of
                         the  attorney  or  legal  assistant  performing  the  service;  a
                         description  of  the  service;  and  the  time  in  tenths,   sixths,   or
                         quarters  of  an  hour,   required  to  perform  the  service.     Because
                         of  the  limitation  on  reimbursable  hours,   a  bill  must  include
                         all  services  rendered  in  a  given  month.     The  Department  will
                         not  consider  subsequent  bills  for  services  rendered  in  a  month
                         for  which  it  has  already  received  a  bill.

                                   In  describing  the  nature  of  the  service  performed,   the
                         itemization  must  reflect  each  litigation  activity  for  which
                         reimbursement  is  claimed.

                                   The  retained  attorney  must  attach  copies  of  airline
                         tickets,   hotel  bills,   and  bills  for  deposition  and  hearing
                         transcripts  to  the  billing  statement.

                                   The  retained  attorney  must  itemize  local  mileage  costs
                         (e.g.,  purpose  of  travel  and  number  cf  miles).     The  Department
                         will  pay  the  standard  government  cost  per  mile  rate  for  the
                         use  of  privately  owned  vehicles.

                                  Before  the  Department  of  Justice  will  pay  a  bill,
                        Department  attorneys  with  substantive  knowledge  of  the
                         litigation  will  review  it.     If  the  retained  attorney  believes
                         that  the  detail  of  the  legal  bill  would  compromise  litigation
                        tactics  if  disclosed  to  Department  attorneys  assigned  to  the
                        case,   the  retained  attorney  should  list  those  particular
                        billing  items  on  a  separate  sheet  of  paper  with  an  indication
                        of  the  specific  concern.    Department  attorneys  uninvolved  with
                        _his  case  will  independently  review  the  separated,   sensitive
                        portion  of  the  bill  solely  to  determine  if  payment  is
                        appropriate  under  applicable  standards.     The  individuals
                        reviewing  the  bills  will  not  discuss  these  items  with  the
                        Department  of  Justice  attorneys  having  responsibility  for  the
                        case,   nor  will  those  responsible  attorneys  review  the  items  in
                        question.
                                  After  Department  attorneys  complete  the  review  of  a  bill,
                        tke  Department  will  notify  the  billing  counsel  if  the
                        Department  deems  any  item  or  items  nonreimbursable  or  if  any
                        item  or  items  require  further  exp!ana_ion.     When  [urther

                       information  or  explanation  is  needed,   the  Department  will  hold
                          the  entire  bill  until  the  retained  attorney  responds.     Only
                          after  the  Department  receives  and  reviews  the  response  will
                          the  Department  certify  the  bill  in  whole  or  in  part  for
                         payment.     For  that  reason,   the  retained  attorney  must  respond
                         promptly.
                                   Should  the  Department  determine  that  any  items  are  not
                         reimbursable  under  this  agreement,   the  billing  counsel  may
                          request  further  review  of  the  Department's  determination.    The
                         retained  attorney  shall  make  such  a  written  request  to  the
                         appropriate  Branch  director  at  the  address  indicated  in  the
                         forwarding  letter.     The  billing  counsel  must  submit  such
                         requests  for  further  review  within  30  days,   unless  additional
                         time  is  specifically  requested  and  approved.     Thereafter,   the
                         Department  will  not  reconsider  its  determination.

                                                                                                                                                                                  i

                                      6.      BILLING  ADDRESS
                                   The  retained  attorney  should  submit  all  bills  to:

                                             Director,   Office  of  Planning,
                                                   Budget  and  Evaluation
                                             Civil  Division
                                             United  States  Department  of  Justice
                                             Washington,   D.C.     20530
                                             Attn:    Room  9042,   L  Street  Building
                         7.       PROMPT  PAYMENT
                                   The  Prompt  Payment  Act  is  applicable  to  payments  under
                         this  agreement  and  requires  the  payment  of  interest  on  overdue
                         payments.     Determinations  of  interest  due  will  be  made  in
                         accordance  with  provisions  of  the  Prompt  Payment  Act  and
                         Office  of  Management  and  Budget  Circular  A-125.

                         8.       GAO  REVIEW

                                   Periodically,   tnhe  Department  of  Justice  may  ask  the
                         retained  attorney  to  submit  copies  of  time  sheets  50  the
                        General  Accounting  Office   <GAO)   for  purposes  of  auditing  the
                        accuracy  of  corresponding  monthly  bills,   copies  of  which  the

                                                                                       -6-

                       Department  will  forward  directly  to  GAO.

                          9.     TERMINATION
                                   The  Department  of  Justice  reserves  the  right  _o  terminate
                         its  retention  agreement  with  the  retained  a_torney  at  any  _ime
                         for  reasons  set  forth  in  28  C.F.R.     50.16.

                                                                                       J-

                                                                     ACCEPTANCE
                            I  agree  that  my  retention  by  the  Department  of  Justice  to
                   represent  ---  in  connection  with  Eke  civil  action             will
                   be  in  accordance  with  the  applicable  statutes,  regulations,
                   and  the  foregoing  terms  and  conditions.    This  written
                   instrument,  together  with  the  applicable  statutes  and
                   regulations,  represents  the  entire  agreement  between  the
                  Department  of  Justice  and  the  undersigned,  any past  or  future
                   oral  agreements  notwithstanding.

                                                     Signature:

                                                              Date:
                       Tax  Identification Number:

                Wednesday, January 15, 2003 10.24 AM                                                                                                  p.02

                                                                        Joseph S. Kieffer, IlL
                                                         Special Master - Monitor
                                                         420 7 'h Street, N.W. #705
                                                         Washington, D.C.  20004
                                                                 (202) 2,18-9543

                               Interior Office: (202) 2084078  Facdmile: (202) 478-1958  Cellular: (202) 321-6022
                                                                January 15, 2003
                          Jeffxey S. Bucholtz, Esquke
                          Deputy Assistant Attorney General
                          U.S. Department of Justleo
                               Civil Division
                          Wash/agton, D.C. 20530                     Re: Cobell et al. v. Norton et al.
                                                                         Civil Actton No. 1:96 CV 01285
                          Dear Mr. Bucholtz:
                         Thank you for your letter dated January 10, 2003, responding to my January 2, 2003
                         letter to S_mdra Spooncr concerning the Department of Justice's denial of the request of
                         thc former Special Trustee for American Indians, Thomas Slonaker, for legal
                         representation and compensation for past representation. I understand you are the
                         respons_I official over the Torts Branch's consideration of requests for individual-
                         capacity represematien submitted by federal employees in legal proceedings arising from
                         conduct perfomled w/thin the scope ofthek federal employment. I apprec/ate your offer
                         to answer questions I rr_ht have concerning Mr. Slonaker's reimbursement for his legal
                         representation in proceedings regarding the Cobell v. Norton Iru:tian/mst litigation. 1
                         I also found your description to be helpful regarding the private counsel program and the
                         decision of 5'our department concerning Mr. Slona.ker's request for legal representation.
                         That description indicated that bk. Slonaker's representation, authorized by your sta_
                         extended only to the Special Master's deposition and representation "d/reedy related to
                         that deposition." Thus, apparently, hi_ representatinn is based on the nature of the
                         proceed/rig covered by the request and nat the content of the deposition or the conduct,
                         communications, or opinions of Mr. Slonaker eddressed during fila! deposition which
                         m/ght be of Interest ro adverse parrtes in later proceedings not co',rred by the limited
                         representation provided to him by the Department ofJustk:e. I take it that for any
                         proceeding in the past, such as the Senate Committee on Indian Affairs' request for his
                          Excluding the Dep_tment of J_tice's deliberations azd decislon-making process concerning Mr,
                              Slonaker'_ legal representation request.
                                                                                       1

                                                                                                                                                  EXHIBIT R
                                                                                                                                              Defendants' 01-23-03
                                                                                                                                           Motion for Protective Order

                 Wednesday, January 15. 2003 1024 AM                                                                                         p. O3

                             tcst_nony, or the future, .tach as my potential deposition of him, Ms. Spoormr's direction
                             to klm is correct. He would have to submit indMduaJ requests m the Department oft.he
                             Interior to obtain that further representation for each such proceeding. [fi am incorrect ia
                             this interpretation, please provide me with the correct interpretation.
                             The additional questions that [ have regarding file Department of Jasdcc% dcci-_ion
                             process are: what role does the Department of the Interior play, if any, in thc
                             deterrent[on of whether Mx. Slonaker's requests for legal representation at future
                             proceedings are approved by th_ Department of Justice? Do any counsel or managers at
                             thc Department of the Interior, or, for that matter, any government office receiving such a
                             request fi.om a fenner employee, merely act a_ a conduit and deliver the request to your
                             office for decision? Or do they offer advice to the Department of Justice as to the
                             appropriateness of granting thc representation? If the hatter procedure i_ the case, must
                             tM Department of Justice deny a reque,t that is not supported by the forwarding agency?
                             Does the Department of Justice seek the opinion of the agency en the appropriateness of
                             the representation and any potential conflicts of interest in dm[r takSag pm_ in thc decision
                             due to the employee's ex'p_cted testimony? How are any conflicts of interest rcsolvcd by
                             the Department of Justice ifa government agency's legal interests would be horned by
                             the testimony of its employee at tile proceeding for which ke or _he i, requesting legal
                             representation?
                             The reason I address these questions to you, Mr. Bucholtz, is that you stated in your letter
                             that "(0he critical determination under thc regulations of when it sen, es the imere.,ts of
                             th_ United 3'tara., to afford representation is a matter committed to the discretion of the
                             Attorney General." In Mr. Slonaker% case, due possibly to his testimony before the
                             Senate and House committees with responsil_l/ty over Indian affairs and z_:Iatcd
                             apptopriation_ and h/s testimony lxrforc the Cobe;l comet, Ms. Spooner, a Department of
                            Justice attorney and lead counsel for the Cobel! defendants, including the Secretary of the
                            Interior, infomd Mr. S[onaker hi a May 20, 2002 letter that "...because it appears that
                            your interests may not be entirely consistent with those of the Un/ted States, you may
                            wish to obtain your own counsel." I have attached a copy of Ms. Spooner's letter.
                            Thus, thc source of my concern, expzes_d in my letter to Ms. Spooaer that you have
                            ad_essed in part, that the posit[on of the Departmem o f Justice on his legal
                            representation "smacks ofr_taliatlon and an auempt to control iris potcmtial testimony,"
                                    can be put into context. _ if the interests of the United States- conceivably the Interior
                            and Justice Departments - are not consistent with Mr. Slonaker's, it would appear that it
                            would not be in the interests of the Attorney General to provide him representation ifhi_

                            2 "R_aliatior[" regarding the potential refusal of reimbursed legal representation in which c_se Mr.
                            S]onaker v, uu[d have to pay for that representation himself to hi,financial detriment. "Control" in that
                            denial o1egaI representation could redound to his potential legal d_iment if he did not avoid testifying.
                                                                               2

                Weanesd3y, January 15, 2003 1024 AM                                                                                         0,04

                             testimony at future proceedings might not be positive regarding his knowledge othe
                             Department of Interior's trim reform activities.
                             I make no inferences in ins discussion regarding you or your staff's conduct in deciding
                             to place limitations on Mr. Slonakcr's legal representation in the past. However, the
                             his_tory of the Cobell litigation and its contempt citations regarding the conduct of
                             government counsel and employees does not augur well for fair and impartial treatment
                             of those present or former I_erior Department employees who have testified or will be
                             required to testify before the Cobell court. Their honest but critical opinions regarding
                             the Interior defendants' trust reform activities or conduct has been a source of reprisals
                             against them in thc p_t as thc Court h_ documented.
                             It would appear that the Departments of Justk:e and Interior face a conflict of interest in
                             addressing Mr. Slormker's future request(s) for legal representation at proceedings such
                             as depositions that others or I may take regarding his knowledge of the Interior
                             defendants' trust reform activities. How you propose to address this conflict other than to
                             provide him [egat representation on a continuing basis rather than require hkn to make a
                             request anew to the Interior defendants every time he receives a summons is of interest to
                             iiq_.
                             Your response to me regax'ding my questions and perceptions regarding tiffs apparent
                             conflict and how you wiU deal with it in the future would be helpful in my cominuea
                             review of the past demal of Mr. Slonaker's legal representation fees and h/s ability to
                             receive a i;aLr decision on legal representation for potential furore proceedings in
                             connection with this litigation_ You may assume for your consideration and response that
                            I will be deposing Mr. Slonaker and that he will be subject to cross-examination by the
                            parties to _he Cobell Iktgarion who ',,ill be knowlcdgcablo of hi'_ Fast trial, lcgi_Iativc, and
                            deposition testimony.
                            Again, thank you for your courtesy in addressing my questions.

                     \k    Sincere_y_s,_;_

                       k\\ Specihl Master-'Morn'tot
                            cc:     Dennis Oingold, Esq.                                    Enclosure
                                     Keith Harper, Esq.
                                     Elliot Levitas, Esq.
                                     Sandra Spooner
                                     James Shaller, Esq.
                                     Benjamin Jacevricz, Esq.
                                                                               3
                                                                                                                                             p.05
              We:ine_day, J_anuary 15, 20G3 _0,24 AM

                                                                 i/_r _   OMI Di_dom                                                 i      :

                                                                                                                                                   J.  :
                                                                                             1
                                                                                        _ 20. 2002                                          J        :

                             i&49 C _orJ_x, NW'

                            2_-28. ;100'2. We will b_ in much to !n_vid_ _ wt_ ,,&llgond _ma_im _o_c _ke_     _               :}
                            depoaim u we r_tv it.
                                    lu_Xi_a O_pm cot_,,_e.i w-2! be _t -_ _ dillon'g,,,, _o r_pma_m It_ United
                            Ix_o Il agpoa_ ih_t yo_ ir_..__ts may _ Be _limly c_stmt with ttto_ of thc U'nir_l
                            _ot he,late to coa_ci mc or mm_ tn lh_ Dcp_C of _ _or_ O!_os af _ !lo 'hck_.

                                                                                                                                                                 I
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         .IA_I-2]-2_OJ    17:57                 OAAO  .]I  _IL  DILL                                                                                       P._]2,.'04

    _            ,?./_                                                  U.S. Department of Justice
                _
                ',__'                                                  Civil Division

               Deputy Al._i_.nt Attorney 6ener.l[                                                Wa_'hi_groa D.C. 205Y0

                                                                                                                        J'anuary 23, 2003

                Joseph S. Kieffer, III
                Special Master - Monitor
               420 Seventh Street, N.W. _ 705
               Washington, DC 20004-22 t 3
                                 Re:    Elouixe Pepion Cobell v. Gale Norton, et si,
                                          C.A. No, 96CV1285 RCL (D.D.C.)
               Dear ,Mr. Kieffer:
                        This responds to your letter of January 15, 2003, in which you raise several questions
               regarding the private counsel program implemented by the Torts Branch. As a preliminary
               matter, to the extent that your let;er may be read to suggest that you plan to review the propriety
               of the Justice Department's decision to deny Thomas Slonaker's request for reimbursement of
               private counsel fees relating to his testimony before Congress, I should point out that, as my
               letter of January I0, 2003 explained, the D.C. Circuit has held that decisions to deny
               representation under 28 C.F.R.  50.15 and. 16 are committed to the Attorney General's
               discretion and are not reviewable. See Falkowski v. Equal E_.rnployment O.pporrunitv
               _?2mmission, 764 I:.26 907, 9t 1 (D.C. Cir. 1985), adhered to on reh_, 783 F.2d 252 (D.C. Cir.
               I986), cem. deniA.d, 47g US. 1014 (1986). Nonetheless, we are pleased to attempt to clariS' the
               process employed by the Justice Depart_ment to consider a request from a federal emp[oyee or a
               former federal employee for individual-capacity representation at federal expense.
                       First, you ask whether Mr. Slonaker is required to submit a separate request for
               representation if he desires individuai-capacity representation at federal expense for any future
               proceedings in or refuted to the Cobel[ litigation.
                       As noted in your leper, in response to Mr. Sbnaker'_ request, the Justice Department has
              authorized pa3ment of private counsel for Mr. Slonaker in regard to matters directly related to the
              Special Master's deposition subpoena to him in Cobell. As I stated in my January' 10 letter, that
              approval would cover private counsel representation for any continuation of the Special Master's
              deposition of Mn Slonaker, and Mr. Slonaker would not need to submit a nc'*' request for
              representation, either to the Lntefior Department or to the Justice Department, with respect :o any
              such continuanon of the Special Master's deposition. On the other hand, because .:he Justice
              Department's existing authorization cf'counsel for Mr. Slonaker does not cover maners that are
              not directly related to the Spec{al Master's deposition (such as con m'essional investigations

                                                                                                                          EXHIBIT S
                                                                                                                                                                     Defendants' 01-23-03
                                                                                                                                                                 Motion for Protective Order
         I_i-2_-20_3   17:$?               OAAG Cit.,IlL- DtlJ.                                                                            P.83/04
     7
  T

                    related to Cpbelj or other proceedings in the Cobell _
                                                                             litigation), Mr. Slonaker should submit a new
                request for representation pursuant to 28 C.F.R,  50.15(a)(1) if he desires private counsel
                representation at federal expense for such a matter.
                         In particular, you state that you may wish to depose Mr. Stonaker and you seek
                confirmation of'your understanding that Mr. S]onaker should submit a new representation request
                for your potential deposition of him.  We would encourage Mr. Slonaker to submit a new request
                if you seek to depose him and if he desires private counsel representation at federal expense with
                respect to your deposition of him. Unless your potential deposition of Mr. Slonaker were to be
                so closely related to the Special Master's deposition of Mr. Slonaker as to constitute a reopening
                of the Special Master's deposition, Mr. Slonaker should submit a new request.
                         Your Ietter suggests that if Mr. Slonaker desired representation with respect to multiple
                proceedings, he would need to submit a separate request for representation with respect to each
                such proceeding. We do not believe that Mr. Slonaker would need to submit separate requests; it
                would be sufficient for Mr. Stonaker to submit a single request that identified each proceeding
                with respect to which he sought representation under 28 C.F.R.  50. t5 and. 16. If Mr.
                Slonaker were to submit a new request and if representation were approved, the Torts Branch
                would forward another retention agreement to Mr. Slonaker's counsel specifically describing the
                matter or matters for which reimbursement of his private counsel's fees ,,vas authorized.
                        You also question the process that Mr. Sionaker should follow to request private counsel
               representation ar federal expense for matters other than the Cobell Special Master's deposition.
               Under  50. l 5(0.)(1 ), a current or former federal employee requesting representation must submit
               a wr/tten representation request to his employing agency. Submission of such a request to the
               employ/ng agency is an integraI part of the procedure specified by the regulations, and the
               rewalations do not provide for an employee or former employee to omit th_is step due to perceived
               conflicts of interest with the agency. Accordingly, if Mr. Slonaker desires private counsel
               representation at federal expense for a matter or matters not directly related to the Cobell Special
               Master's deposition, Mr, S[onaker should submit a request for the same to the Department of the
               Interior,
                        When a federal agency receives a representation request from an employee, the
               regulations require the agency to fomvard the request to the Civil Division with a "statement
               containing its findings as to whether the employee was acting within the scope of his
               employment and its recommendation for or against providing representation, The statement
               should be accompanied by all available factual information." 28 C.F.R.  50.15(a)(1). This
               statement [ogicalIy wouId encompass the views of the agency as to whether the individual
               representation of the employee would conflict with the interests of the agency or the United
               States  Under this prox:ision, an empioymg agency should not act me. re':y as condmt and fb,,arct
               thc employe, e's request without comment. Nonetheless, as I explained in my Ja_rluar'2' [0 fetter,
               the agency's recommendation is not control!ing; it is merely a factor considered by the Justice
              Depa_ment The ultimate decision of whether to authorize representation [s an independent
         IA_1-2_-20_   17:_?               OAAG CIUIL  DIU,                                                                            P.04,,'04

                    determination made by the Iustice Department on a case-by-case b_is.
                         You also question how aa employing agency and the Justice Department may fairly
                address a representation request from an employee who is asserting conflicting positions with the
                United States in litigation. Your inquiry in this regard appears premised on the assumption that
                an employee may be entitled to private representation at federal expense under 28 C.F.R. 
                50.15 and. 16 even to pursue legal interests that conflict with those of the United States. In fac[,
                the regulations do not authorize the expenditure of federal funds for such a purpose. The
                regulations specifically stare that "[r]epresentation is not available to a federal employee
                whenever.., lilt is... determined by tl_e [Justice] Department that it is not in the interest of the
                United States to provide representation to the employee." 28 C.F.R.  5&iS(b)(2). Also, as
                mentioned in my prior letter, the standard retention agreement makes clear that the Justice
                Department will not pay for "any Iegal work that advances only the individual interests of the
                employee," and will not pay for services that "are not in the interests of the United States" even
                ,.,,'here such services are "deemed reasonably necessary to the defense of an employee." Se_.e
                standard retention agreement at pp. I-2.
                        This is not to suggest that private representation at federal expense necessarily will be
                denied ko an employee merely because the employee has offered testimony tl.at is inconsistent
               wi:h the factual position taken by the United States in a case or because it is anticipated that the
               employee may do so. To the contrary, it is understood that federal employees often have a wide
               range of opin.ions and perceptions about many complex issues they must address in the course of
               their employ'n-tent. The United States has an important interest in litigation in supporting a full
               airing of all relevant views. The United States also has a verY strong interest in the morale of the
               federal workforce, and it attempts to safeguard that interest by endeavoring to ensure that all its
               employees are treated fairly in litigation that arises from the performance otheirjobs The
               Justice Department considers ti.ese factors in each case in mak/ng the discretionary determination
               of :vhether it is in the interest of the United States to provide representation ar federal expense.
                        I hope _hat this letter has clarified these matters,

                                                                                     Jeffrey Sf B_holtz

               cc:     James Schaller
                       Dennis Gingold
                       Kelth Harper
                       Ellior Levirzs
                       Benjamin Jacewicz
                       S a.,ndra Spooner

                                                                                                                             TOTAL _,g4
              Thursoat, Ja_ua,y 02, 2003 '_ .06 PM
                                                                                                                                              p.O2

                                                              Joseph S. Kieffer, IiL
                                                  Special Master - Monitor
                                                  420 7 '_
                                                                      Street, N.W. 0705
                                                            Washington, D.C.  20004
                                                                     (202) 248-9543
                         Interior Office: (202) 208.4078  Facsimile: (202) 478-2958  Cellular: (202) 321-6022
                                                                    January 2, 2003

                         Ten3' M. Petrie, Esquire                                Keith Harper, Esquire
                         Michael Quinn, Esquire                                 Native American Rights Fund
                         John 8templewiez, Esquire                              1712 N Street. N.W.
                         Civil Div/sion                                             Washington, D.C. 20036-2976
                         U,S. Department Of Justice
                         P. O. Box 875
                         Ben Franklin Station
                         Washin_op., D.C, 20044-0875
                                                                             Re: Cobell et al. v. Norton et ak
                                                                             Civil Action No. ] :96 CV 01285
                                                                             (Judge Lambert_h)
                         Dear Counsel:                           i_: Spec.iai M_ter-Monitor'5 Doposition
                                                                    RegulaCan
                        Over the holidays, I conducted a review of the depos/tions that I have overseen pursuant
                        ro the Court's dkection in its September 17, 2002 Order appointing r_ Special Master-
                        Monitor. That direction included the following language:
                         "The Special-Master-Monitor shall have and shall exercise the power to regulate all
                         proceedings in ever)' hearing before the rnaster-monitor and to do all acts and take
                             all measures necessary or proper for the efficient performance of the master-
                                             monitor's duties, as set forth in this order, rd. at 3.
                        And further:
                          _'The Special Ma_ter-Monitor shall al_o ovensee the discovery process in this case
                        and administer document production ... to ensure that discovery is conduced in the

                                                  .                                                                          EXHIBIT T
                                                                                                                          Defendants' 01-23-03
                                                                                                                       Motion for Protective Orde
                Thursday, January 02, 2,003 1.08 PM                                                                                             p,03

                                manner required by the Federal Rules of Civil Procedure and the orders of this
                                  Court. The Special Master-Monitor shall file with the Court, with copies to
                                 defendants' and plaintiffs' counsel, his report and recommendation as to any
                                   discovery, dispute that arises which cannot be resolved by thc partie Id.
                            Before and during the series of depositions thai have been taken to date of both
                            defendants' and plaintiffs' witnesses, defendants' counsel have repeatedly asserted in
                            correspondence and on the deposition record that the Court's direction, specifically the
                            last phrase quoted above, lirn/ts the authority of the Special Master-Monitor. Mr. Petrie
                            first asserted this position in a discovery status teleconference on November 13, 2002 in
                            wlfich thc following dlaloguod took place:
                            "Special Master-Monitor Kieffer ("SMM Kieffer'): Okay. Now, let me give you
                            another example, During the deposition, when you're still asking good questions, ff
                            you ask a harassing question, ,_nd the plaintiffs object to it, same situation -
                            Mr. Petrie: Yes, sir.
                            SMM Klcffer: - and [ say, yeah, that's harassing, go on, don't ask that question,
                            you say, oh, but we want to, we don't think it's harassing, is tbat a dispute?
                            Mr. Petrie: Yes, air,:
                            SMM/Cieffer: Itl other word_, n, erythtng that there'_ a disagreement on in your
                            concept is a dispute?
                           Mr. Prlrl: That's corrtct."' Tran._cript at 8.
                           Defendants' counsel have held to this interpretation with fez, exceptions throughout the
                           course of the Phase 1.5 trail depositions. They have continued to assert That any dispute
                           so identified by defendants will requi_e a Report and Recommendation of tM Special
                           Master-Monitor and that I cannot resolve any disputes dru'ing a deposition even regarding
                           the appropriateness ora question in a deposition posed by either defendants' or plaintiffs'
                           counsel.
                           Ms. Spooner has most recently refused to perrmt the Acting Special Trus:ee to answer
                           ph_mtLf_' counsel's questions even following my rulinrg on the appropriateness of the
                           questions and direction that thc w/these answer them.
                           : See Decomber 20, 2002 ErMn Deposition Tram_ipt at 286-297; "By Mr. Brow,n: You've sat _n that
                           courtroom. You heard what was represented to the Court by your attorneys. Were t,hoGe r_re_etaations
                           accurate? Ms. Spooner: I'm going to object on the ground that you are now harassing the w/tn_s that I've
                           instructed not to - Mr. Kiefl_r; lie's not harassing the _vimess. And she mayanswer the question. Because
                                                                              2

                Th,Jrscay, J;3nua;y 02, 2003 1 06 PM                                                                                             p.04

                             The result ofdefeMaats' couns,eFs refusal to accept the authority of the Special Master-
                             Monitor to regulat_ tee depositions, in my opinion, h_ been to put plaintiffs' coumet at a
                             severe disadvantage due to plaimiffs' counsel's acceptance of the direction of the Special
                             Master-Monitor even in the presence of the defendants' counsel's active objectiort to and
                             refusal to follow it, This conduct cannot cominue without/t_t'mr erosion of the Court's
                             authority and the resultant inability ofplaintiff_ to conduct effective Phase 1.5 trial
                             discovery?
                             Therefore, in future depositions, should counsel refuse to abide by my direction on
                             discovery di.spulcs that nrc tmquc_tio:zably within my authority to resolve as granted to
                             me by the Court in its September 17, 2002 Order, including but not limited to the
                            regulation of deposition questioning, consideration will be given to terminating the
                            deposition mad filing a Report and Recon-uYLendation to thc Court recommending an Order
                            to Show Cause be issued requiring courmel to answer why kis or her conduct should not
                            be referred to the Disciplknary Panel of the U.S. District Court for the District of
                            Columbia for review and appropriate action pursuant to Rule 8.4 (d) of the District of
                            Columbia Rules of Professional Conduct and why his or her conduct docs not warrant
                            personal monetary sanctions pur=uant to Federal Rule of Civil Procedure 37(A)(4))
                            Sincerely yours,    .

                       t    Jo_:ph S. Kieffer, 1_I'_/
                            Special Master - Monitor
                            cc:     Mark Brown, Esquire
                                    Denn/s Gingold, Esquire
                                    Elliot Levites, Esquire

                            it yeas in public Court. Ms. Spooner: I am instructing you n_t to amwcc that question.  Hares*mcat, Mt.
                           Kieffer, is one of the grounds on which an attorn_ can instruct the wimess not to answer. Mr. Kie_r: i
                           just said he axked a legidmate question to Ms. gr'*in. Ms. Spooner: l unde'r,ta_d that. Mr. Kieffer: And I
                           w_nt M'_. Erwin to an_wt'r thc Clu_tion. M_. Spooner: And ! am im;tructing h_not to am;we.r."
                             On November 15, 2002 ,nd N_,ember 21,2002, the Special Master-Moa itor provided two Reports to the
                           Court addressing the def,mdomt position and recommending expedited consideration of the
                           reoommond,,tiort to oilily the Coutt'l geptembor I?, 2802 Order. Defendant_' opposed the interpretation
                           of the Special Master-Monitor of his authority and argued that the Court did not Mrs jurisdiction to modify
                           _he Order while the Order wis pending appeal. The Court has not acted on the $pocial Malt-r-Monitor's
                           recommendation to clarify the Order r_garding Ihs authority of the Special Master-Monitor.
                             Rule 8.4(d} states: "It is professional misconduct for a [avo_er to: engage in cenduct that seriotnly
                           interferes with the administration of Justice." Failure to obey court orders may constitute misconduct under
                          paragraph (d). See In re lCh#/oclr, ,141 A.2d 989 at 989-991 (D.C. 1982)
                                                                               3