In the United States Court of Federal Claims

No. 16-75L

(Filed: July 5, 2017 | Not for Publication)

ROGER BIRDBEAR, et al.,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Keywords: Native American Trust; 

Discovery; Subpoena; Non-Party; 

RCFC 45; Motion to Quash.

David C. Smith, Kilpatrick Townsend & Stockton, LLP, Washington, DC, for Plaintiffs. 

Charles W. Galbraith, Kilpatrick Townsend & Stockton, LLP, Washington, DC, and 

Dustin T. Greene, Kilpatrick Townsend & Stockton, LLP, Winston-Salem, NC, Of 

Counsel. 

Jody H. Schwarz, Natural Resources Section, U.S. Department of Justice, Washington, 

DC, with whom was Jeffrey H. Wood, Acting Assistant Attorney General, for Defendant. 

Holly Clement, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, 

Of Counsel. 

Robert S. Thompson, III, Greenberg Traurig, LLP, Denver, CO, for Non-Party EOG 

Resources, Inc.

Keith D. Tooley, Welborn Sullivan Meck & Tooley, PC, Denver, CO, for Non-Party 

Whiting Resources Corporation. Jens Jensen, Welborn Sullivan Meck & Tooley, PC, 

Denver, CO, Of Counsel. 

OPINION AND ORDER

KAPLAN, Judge.

The plaintiffs in this case are individual members of the Three Affiliated Tribes of 

the Fort Berthold Reservation. The Reservation lies within the boundaries of the state of 

North Dakota. Plaintiffs allege that the United States has breached its fiduciary 

obligations and violated federal regulations governing the leasing and management of 

Plaintiffs’ lands for oil and gas production. 

Plaintiffs have served subpoenas for the production of documents on a number of 

non-party oil and gas companies that operate on the Fort Berthold Reservation. Two of 

those companies, Whiting Resources Corporation (Whiting) and EOG Resources, Inc.
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(EOG), filed motions to quash the subpoenas. They argue that the subpoenas are 

overbroad and impose an undue burden on the companies. Whiting and EOG also argue 

that the subpoenas request documents that contain confidential and proprietary 

information. 

The Court heard oral argument on the motions to quash on June 28, 2017. Subject 

to the conditions discussed below, the motions to quash are GRANTED-IN-PART and

DENIED-IN-PART.

BACKGROUND

On September 16, 2016, Plaintiffs issued subpoenas to EOG and Whiting via 

certified mail to their registered agents. See Non-Party EOG Resources, Inc.’s Mot. to 

Quash Subpoena to Produc. Docs. & Mem. of Law in Supp. Thereof (EOG’s Mot.) at 8, 

ECF No. 34; Mot. to Quash Pls.’ Subpoena to Produc. Docs., Information, or Objects or 

to Permit Inspection of Premises (Whiting’s Mot.) at 3, ECF No. 72; see also EOG’s 

Mot. Ex. A, ECF No. 34-1; Whiting’s Mot. Ex. 1 at 1–2, ECF No. 72-1. The subpoenas 

demand copies of leases covering Plaintiffs’ and surrounding lands, documents regarding 

oil and gas production and drainage, documentation of well location, documents related 

to environmental matters, and other documents relating to the leasing of property or 

production of oil and natural gas on the Reservation. EOG’s Mot. Ex. A at 6–10. 

Both non-parties assert that the subpoenas should be quashed in their entirety. 

They challenge the subpoenas on two overarching grounds. First, they assert that the 

subpoenas are invalid because they were issued prematurely and because they were not 

personally served upon the non-parties. Second, they assert that the subpoenas are 

overbroad and impose an undue burden upon them because a number of the requested 

documents are either in the government’s possession or publicly available, and because 

some of the requests apply to land for which Plaintiffs have no property interest. The 

non-parties also argue that the subpoenas would require them to provide confidential and 

proprietary information. 

DISCUSSION

The Rules of the Court of Federal Claims (RCFC) permit the discovery of “any 

nonprivileged matter that is relevant to any party’s claim or defense,” regardless of 

whether the information itself is admissible. RCFC 26(b)(1). Where the recipient of a 

subpoena moves to quash the same, the court must do so, or modify the subpoena, if, as 

relevant here, the subpoena “(iii) requires disclosure of privileged or other protected 

matter, if no exception of waiver applies; or (iv) subjects a person to undue burden.” 

RCFC 45(d)(3)(A). Additionally, a court “may, on motion, quash or modify the subpoena 

if it requires: (i) disclosing a trade secret or other confidential research, development, or 

commercial information.” RCFC 45(d)(3)(B). When a party moves to quash a subpoena 

pursuant to RCFC 45(d)(3)(B), the court is also permitted to “order appearance or 

production under specified conditions if the serving party: (i) shows a substantial need for 

the testimony or material that cannot be otherwise met without undue hardship; and (ii) 

ensures that the subpoenaed person will be reasonably compensated.” RCFC 45(d)(3)(C). 
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As the movants, EOG and Whiting bear the burden of showing the subpoena is 

“unreasonable and oppressive.” Truswal Sys. Corp. v. Hydro-Air Eng’g, Inc., 813 F.2d 

1207, 1210 (Fed. Cir. 1987) (quotation omitted). The movant’s “burden is particularly

heavy” when it seeks to quash a subpoena in its entirety, as opposed to where it seeks 

“some more limited protection” short of quashing the subpoena. Id. (quotation omitted). 

The court is required to balance the relevance of the discovery sought, the requesting 

party’s need, and the potential hardship to the party subject to the subpoena. Id. That the 

person or entity upon whom the subpoena is served is not a party to the case is one factor 

a court considers in deciding the motion to quash. Id.

As an initial matter, the Court rejects as moot EOG’s and Whiting’s arguments

that the subpoenas served by Plaintiffs should be quashed because they were premature. 

Whether or not they were premature when first issued in September 2016, discovery 

commenced in February 2017 pursuant to this Court’s order (ECF No. 64). Plaintiffs are 

certainly now entitled under the Rules to serve subpoenas upon non-parties. And 

requiring them to reissue their subpoenas now would be pointless.

Further, the Court concludes that the subpoenas were validly served upon EOG 

and Whiting in compliance with RCFC 45 by service upon their registered agents via 

certified mail. Pursuant to that rule, subpoenas must be served by “delivering a copy to 

the named person.” RCFC 45(b)(1). The dictionary definition of “deliver” includes “to 

take and hand over to or leave for another.” Deliver, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/deliver (last accessed June 28, 2017). 

Black’s Law Dictionary defines “delivery” first and foremost as the “formal act of 

voluntarily transferring something; esp., the act of bringing goods, letters, etc. to a 

particular person or place.” Delivery, Black’s Law Dictionary (10th ed. 2014). Certified 

mail therefore satisfies the plain language of RCFC 45 because the postal carrier 

“deliver[s] a copy to the named person.”1

While commentators have noted that “[t]he longstanding interpretation of Rule 45 

has been that personal service of subpoenas is required,” no binding Federal Circuit 

precedent so holds, and those same commentators also have noted that “a growing 

number of cases have departed from the view that personal service is required.” 9A 

Charles Alan Wright et al., Federal Practice and Procedure § 2454 (3d ed. Apr. 2017 

update); see also, e.g., Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th Cir. 2012) 

(holding that service upon state agencies via certified mail satisfied Fed. R. Civ. P. 45).

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Moreover, in contrast to RCFC 45, RCFC 4(a) states that “[t]o serve a complaint 

on the United States, the clerk must deliver one copy of the complaint to the Attorney 

 

1 Certified mail allows a sender to “[s]ee when [the item of mail] was delivered . . . and 

get the signature of the person who accepts the mailing when combined with Return 

Receipt.” Insurance & Extra Services, USPS.com, https://www.usps.com/ship/insuranceextra-services.htm? (last visited June 28, 2017). 

2 RCFC 45 and Fed. R. Civ. P. 45 are identical.
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General . . . by hand delivery or by sending it to an electronic address designated . . . for 

this purpose.” If the drafters of the Rules intended to require personal hand-delivery for 

the service of subpoenas, RCFC 45(b)(1) would use the kind of explicit language that is

used in RCFC 4(a), but it does not. The Court thus rejects EOG’s and Whiting’s 

arguments. At least where the recipients of the subpoenas are corporate entities that have 

received actual notice of the subpoenas, the Court concludes that that service via certified 

mail complies with RCFC 45.

The Court turns to the specific substantive contentions made by EOG and 

Whiting. First, the Court rejects their objections to Plaintiffs’ requests for documents 

related to properties other than those for which they possess a beneficial interest. 

Plaintiffs have narrowed their initial subpoenas to seek leasing and production

information for their own properties and those within a three-mile radius of their

properties. This information is relevant to Plaintiffs’ claims that the government did not 

lease Plaintiffs’ properties for a fair market rate and that the government did not 

adequately protect Plaintiffs’ properties from drainage. The latter point is explained in the 

uncontested expert affidavits Plaintiffs have submitted. See Second Decl. of Craig W. 

Van Kirk, ECF No. 97.

As to undue burden, Whiting and EOG assert generally that it will take a 

significant amount of time and resources to respond to the subpoenas. These assertions by 

counsel are unsupported by pertinent evidence.

3 Nor does the Court find persuasive the 

arguments of Whiting and EOG that the subpoenas should be quashed to the extent that 

they seek documents which may be available on public databases maintained by the State 

of Nebraska. Plaintiffs’ requests are tailored to secure information relevant to this case, 

and requests for such information do not pose an undue burden on third parties,

particularly those like EOG and Whiting that derive significant monetary benefit from 

Plaintiffs’ properties.

On the other hand, the Court agrees that—at this point—it is unnecessary to 

require the third parties to produce documents that should be in the government’s 

possession. Plaintiffs’ reason for requesting that the third parties produce these 

 

3 EOG’s Declaration of Shay Holte (ECF No. 45-2), one of its Petroleum Engineers,

speaks primarily to its argument that a number of the requested documents can be 

obtained in discovery from the government, a point the Court addresses in the text below. 

Mr. Holte’s affidavit also protests the burden imposed by requiring EOG to search for 

documents related all of its oil and gas leases in North Dakota or for its leases for some 

62 tracts of land he asserts are encompassed in the original subpoena. Plaintiffs have now 

explicitly limited their requests to: 1) the tracts of Plaintiffs’ land leased by EOG and 

Whiting (six by each) and which Plaintiffs have identified by both lease and tract 

number; and 2) land within a three-mile radius of those properties. Much of the 

documentation that Plaintiffs request may well be stored in electronic form; the requested 

emails certainly are. In any event, the Court is unpersuaded by Mr. Holte’s assertions that 

it would be an undue burden to require EOG to produce the documents related to these 

properties.
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documents appears to concern the speed at which the government is producing the 

documents in discovery, as opposed to whether the government’s records are themselves

complete. Should the government not produce the documents within the next 60 days, 

Plaintiffs may issue new subpoenas, requesting their production.

Accordingly, EOG’s and Whiting’s motions to quash are GRANTED-IN-PART

as follows: Requests 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 17, 18, 19, 20, 21, 22, 23, 25, and 

32 are quashed to the extent they request documents that are also in the possession of the 

federal government. 

To the extent the numbered requests listed above seek documents not also in the 

possession of the federal government, and are limited, as agreed by Plaintiffs, to the 

specific tracts of Plaintiffs’ lands in which EOG and Whiting have an interest and those 

within a three-mile radius of Plaintiffs’ properties, EOG’s and Whiting’s motions are 

DENIED. Additionally, their motions are DENIED with respect to the remaining 

requests in the subpoenas, as limited in the same manner to Plaintiffs’ properties in which 

EOG and Whiting have an interest and those within a three-mile radius thereof. 

EOG and Whiting, however, are entitled to a protective order to the extent that 

subpoenas seek confidential and/or proprietary information. To that end, the Court 

DIRECTS the parties to confer regarding a proposed protective order for the production 

of non-party information and to submit an agreed-upon proposed protective order to the 

Court within SEVEN days of the date of this order. For this reason, Plaintiffs’ current 

motion for a protective order, ECF No. 77, is DENIED as moot.

IT IS SO ORDERED.

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge