IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS MOTION FOR A PROTECTIVE ORDER 
REGARDING PLAINTIFFS NOTICE OF DEPOSITION OF ROSS SWIMMER 
On January 20, 2004, without any prior communication to counsel for Defendants, 
Plaintiffs noticed the deposition of Ross Swimmer, Special Trustee for American Indians, 
Department of the Interior, for January 28, 2004 (Notice of Deposition) (attached as Exhibit 1). 
Plaintiffs are not permitted to depose Mr. Swimmer because they are not entitled to any 
discovery at this time. Moreover, the lack of any proceedings makes it impossible to determine 
whether the requested discovery would be within the scope of permissible discovery under Rule 
26(b). Accordingly, pursuant to Rule 26(c), Defendants move for a protective order preventing 
the noticed deposition of Mr. Swimmer.1 
1/ As required by Rule 26(c), and Local Rule 7(m), counsel for Defendants conferred with 
counsel for Plaintiffs on January 22, 2004 in an attempt to resolve this dispute without Court 
action. Plaintiffs expressed an intent to oppose the relief requested here.
ARGUMENT 
NO DISCOVERY IS AUTHORIZED AT THIS TIME I. 
Plaintiffs are not authorized to take any discovery at this time. Fact discovery for the 
Phase 1.5 trial closed on March 28, 2003, the trial itself was concluded six months ago, and the 
Court ruled upon the issues raised therein on September 25, 2003. There is no indication in the 
Court's October 17, 2002 Phase 1.5 Trial Discovery Schedule Order that the Plaintiffs were 
authorized to conduct roving discovery after the Phase 1.5 trial. 
In addition, nothing in the structural injunction issued by the Court on September 25, 
2003, provides for further discovery. The Court's injunction establishes a series of deadlines 
through September 30, 2007, for the Department of the Interior to perform specific tasks.2 Under 
the schedules established by the Court's September 25, 2003 orders, a Phase II trial is likely, and 
it is possible that there will be discovery associated with it.3 However, there is no discovery 
order setting a discovery schedule for a Phase II trial. There are also no other proceedings before 
the Court requiring discovery. 
Finally, even if the noticed deposition of Mr. Swimmer was purportedly related to some 
future proceeding in this case, the parties have not held a discovery planning conference pursuant 
to Federal Rule of Civil Procedure 26(f) and, therefore, Plaintiffs are not authorized to take any 
2/ Defendants have filed a notice of appeal of the September 25, 2003 structural injunction, and 
the Court of Appeals issued an administrative stay of that injunction on November 12, 2003. 
Plaintiffs, therefore, have no basis for seeking to inquire about what Defendants are presently 
doing to comply with the structural injunction. 
3/ Defendants note and reassert their continuing objection to discovery on the ground that such 
discovery is improper in an Administrative Procedure Act case. For that purpose, we incorporate 
by reference the arguments set forth in Defendants Motion for Protective Order Regarding 
Plaintiffs Notice of Deposition of the Secretary of Interior at pages 5-7 (November 10, 2003). 
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discovery. Fed. R. Civ. P. 26(d), 30(a)(2)(C), 34(b). Because no discovery is permitted at this 
time, the Court should issue a protective order to prevent the requested discovery. 
II. THE REQUESTED DISCOVERY CANNOT BE REASONABLY CALCULATED 
TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE 
Because the scope of any future proceedings in this litigation remains undefined, it is 
impossible to determine, and Plaintiffs cannot show, that the requested discovery would be 
within the scope of the Federal Rules. Under Rule 26(b)(1), parties may only obtain discovery 
regarding matters that are relevant to the claim or defense of any party . . . . Fed. R. Civ. P. 
26(b)(1). Although information need not be admissible at trial to be discoverable, it still must be 
[r]elevant information and must be reasonably calculated to lead to the discovery of 
admissible evidence. Id. 
During the meet and confer discussion initiated by Defendants counsel on January 22, 
2004, Plaintiffs counsel identified as potential areas of inquiry Mr. Swimmer's recent statements 
to Time magazine concerning fees charged on certain IIM transactions, the "to be" project, and 
"Navajo issues," but stated that any deposition would not necessarily be limited in scope to those 
topics. The topics that Plaintiffs' counsel did identify may or may not be relevant in the future in 
this litigation, depending on the nature and scope of future proceedings. However, the absence of 
any proceeding scheduled at this time containing triable issues of fact makes it premature, if not 
impossible, to determine whether discovery into these topics, or any others, would be relevant 
and reasonably calculated to lead to the discovery of admissible evidence. Under the 
circumstances, Plaintiffs attempt to take discovery at this time is no more than a roving 
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investigation without any discernible bounds that is untethered to any proceeding. Such 
discovery is not permissible under Rule 26. 
CONCLUSION 
For these reasons, Defendants Motion for a Protective Order should be granted. 
Respectfully submitted, Dated: January 26, 2004 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Timothy E. Curley 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
TIMOTHY E. CURLEY 
D.C. Bar No. 470450 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
4
CERTIFICATE OF SERVICE 
I hereby certify that, on January 26, 2004 the foregoing Defendants Motion for a 
Protective Order Regarding Plaintiffs Notice of Deposition of Ross Swimmer was served by 
Electronic Case Filing, and on the following who is not registered for Electronic Case Filing, by 
facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
Kevin P. Kingston 
Kevin P. Kingston
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
__________________________________________ 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
) 
) 
) 
) 
) 
GALE A. NORTON, Secretary of the Interior, et al., ) 
Defendants. 
) 
) 
__________________________________________ ) 
ORDER 
This matter comes before the Court on Defendants Motion for a Protective Order 
Regarding Plaintiffs Notice of Deposition of Ross Swimmer (Dkt. #______). Upon 
consideration of the Motion, the responses thereto, and the record in this case, it is hereby 
ORDERED that Defendants Motion for a Protective Order is GRANTED; and it is 
further 
ORDERED that Plaintiffs are precluded from deposing Mr. Swimmer at this time. 
SO ORDERED. 
Date: ________________ _____________________________ 
ROYCE C. LAMBERTH 
United States District Judge 
Case No. 1:96CV01285 
(Judge Lamberth)
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 2044-0875 
Fax (202) 514-9163 
Dennis M. Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, N.W., Box 6 
Washington, D.C. 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro Se) 
blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530 
2
ELOUISE PEPION COBELL, et al., 
GALE NORTON, Secretary 
____________________________________) 
To: 
cc: 
writing, on January 28, 2003, at the offices of Dennis M. Gingold, 607 14th Street, N.W., 9th 
Floor, Washington D.C. 20005, plaintiffs in this action will take the deposition of Ross 
Swimmer, Special Trustee, Department of Interior, 1849 C Street, N.W., Washington, D.C. This 
deposition will commence at 10:00 a.m. and will continue from day to day until completed. 
Testimony will be recorded by stenographic means. 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
Plaintiffs 
v. 
Defendants. 
NOTICE OF DEPOSITION 
J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1100 L Street, NW, Room 10036 
Washington, DC 20005 
202.514.9163 (fax) 
Attorney for Defendants 
Earl Old Person, Pro se 
BlackFeet Tribe 
P.O. Box 850 
Browning, MT 59417 
406.338.7530 (fax) 
PLEASE TAKE NOTICE, that unless otherwise expressly agreed to by the parties in 
))))))))))) 
Case No.1:96CV01285 (RCL)
Of Counsel: 
JOHN ECHOHAWK 
Native American Rights Fund 
1506 Broadway 
Boulder, Colorado 80302 
303-447-8760 
January 20, 2004 
_______________________ 
KEITH HARPER 
D.C. Bar No. 451956 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
202 785-4166 
Respectfully submitted, 
/s/ Dennis Gingold 
________________________ 
DENNIS M. GINGOLD 
D.C. Bar No. 417748 
P.O. Box 14464 
Washington, D.C. 20044-4464 
202 824-1448 
/s/ Keith Harper 
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE 
I hereby certify that a copy of the foregoing NOTICE OF DEPOSITION was served on the 
following via facsimile, pursuant to agreement, on this day, January 20, 2004. 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
406.338.7530 (fax) 
J. Christopher Kohn 
United States Department of Justice 
Civil Division 
1100 L Street, NW, Room 10036 
Washington, DC 20005 
202.514.9163 (fax) 
/s/ Geoffrey Rempel 
_______________________ 
Geoffrey M. Rempel 
2