Free Joint Status Report - District Court of Federal Claims - federal

Case 1:06-cv-00934-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) KAW NATION OF OKLAHOMA,

No. 06-cv-00934 L Judge Francis M. Allegra

JOINT STATUS REPORT Pursuant to this Court's minute order issued on April 18, 2008, Plaintiff and Defendant (the parties herein) submit the following joint status report: 1. As this Court is aware, it referred this case this case to Senior Judge Bruggink on January 25, 2008, for alternative dispute resolution (ADR) proceedings, pursuant to the parties' request. Docket (Dkt.) #30. 2. In the last joint status report, which was filed on April 18, 2008, Plaintiff stated that it intended to seek leave to amend the Complaint further in this case and that it contemplated beginning its document and data review process by no later than September 1, 2008. Dkt. #39. Further, the parties stated that they intended to confer about Plaintiff's need for discovery; the parties' plans or proposals regarding that need; and certain issues relating to Plaintiff's discovery need and the parties' plans or proposals (e.g., document and data productions or inspection(s), pre-inspection privilege reviews, timing and scheduling, etc.). Id. Additionally, the parties stated that they would inform this Court, as well as ADR Judge Bruggink, of any plans, proposals, and schedules that they develop and implement on the matter. Id.

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3. Plaintiff continues to believe that it needs informal discovery so that it can obtain additional information to provide a basis for meaningful ADR proceedings. Defendant agrees that Plaintiff needs to inform itself, from documents, data, and other sources, including various documents and data within Defendant's possession, custody, and control, about the factual and legal bases of the trust fund and non-monetary trust asset mismanagement claims that it has alleged herein, so that the parties can advance the ADR process. 4. By letter of its counsel dated April 3, 2008, Plaintiff requested that Defendant make available for Plaintiff's review all documents "referred to" in the indices and inventories that Defendant had produced to Plaintiff on February 27, 2008, in compliance with Paragraphs 3(a) and 3(b) of the Document Preservation Order (DPO) dated October 24, 2007 (Dkt. 22), and modified on February 19, 2008 (Dkt. 36). The indices and inventories are of large collections of documents of the United States Department of the Treasury and the National Archives and Records Administration (NARA), at various locations in and outside of Oklahoma, and they contain numerous headings that describe types or categories of documents maintained by each agency in which relevant or potentially relevant documents relating to Plaintiff might be found. Because of the manners in which the agencies collect, organize, and catalog records, some headings do not refer to Plaintiff at all. Nonetheless, Plaintiff stated its belief that the

documents "referred to" in the indices and inventories fell within the definition of "relevant records" under the DPO. 5. In response, Defendant stated its view that Plaintiff's request was extremely broad and unduly onerous because it amounted to a request for Defendant to produce and deliver thousands of documents, any number of which would have no relevance to Plaintiff's trust claims in this

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case or its companion case in the United States District Court for the Western District of Oklahoma, to Oklahoma, where the documents could be made available for Plaintiff's inspection. 6. Plaintiff and Defendant have been and continue to be conferring to determine whether they can resolve the differences in their interpretations of Defendant's obligation under the DPO to provide the documents in the indices and inventories for Plaintiff's inspection in Oklahoma, without having to seek this Court's involvement. 7. On July 15, 2008, Plaintiff submitted to Defendant, via electronic and regular United States mail, an informal interrogatory and an informal request for production of documents. Based on Defendant's initial review, Plaintiff's informal discovery requests --- to the extent that they inquire about "all persons who have knowledge of any of the facts or allegations made in any party's pleadings in this case" and they request the production of "a description by category and location of all documents in [Defendant's] possession, custody, and control . . . which relate to the Plaintiff's trust funds" --- appear to be extremely broad, vague, and non-specific, and responding to them imposes an unreasonable and undue burden on Defendant. Nonetheless, Defendant is in the process of reviewing the informal discovery requests in greater detail and will confer with the counsel and program staffs of the requisite client agencies, including the Interior and Treasury Departments, to prepare the appropriate objections and responses to the requests. 8. Plaintiff anticipates beginning its document and data review process as soon as possible. The parties foresee a need for conferences about Plaintiff's informal discovery

requests, including Plaintiff's request that all documents and data be made available to Plaintiff for review in Oklahoma and various matters relating thereto (e.g., document and data

productions or inspection(s), pre-inspection privilege reviews, timing and scheduling, etc.). The

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parties intend to hold the first of such conferences on July 22, 2008. The parties will inform this Court, as well as ADR Judge Bruggink, as appropriate, of any plans, proposals, and schedules that they develop and implement on the foregoing and other issues. Dated: July 18, 2008 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General s/ Kennis M. Bellmard II, KENNIS M. BELLMARD II, OBA #13965 Andrews Davis, P.C. 100 North Broadway Avenue, Suite 3300 Oklahoma City, OK 73102 Tel: (405) 272-9241 Fax: (405) 235-8786 [email protected] Attorney of Record for Plaintiff s/ Terry M. Petrie pursuant to written authorization provided on July 18, 2008 TERRY M. PETRIE United States Department of Justice Environment and Natural Resources Division 1961 Stout Street, 8th Floor Denver, CO 80294 Tel: (303) 844-1369 Fax: (202) 353-2021 [email protected] Attorney of Record for Defendant OF COUNSEL: TIMOTHY M. LARASON, OBA #5239 MICHAEL D. MCMAHAN, OBA #17317 SANDRA B. HARRISON, OBA #18647 JACQUELYN V. DUFFY, OBA #21630 Andrews Davis, P.C. 100 North Broadway Avenue, Suite 3300 Oklahoma City, OK 73102 Tel: (405) 272-9241 Fax: (405) 235-8786 www.andrewsdavis.com OF COUNSEL: ANTHONY P. HOANG JARED PETTINATO United States Department of Justice Environment & Natural Resources Division PO Box 663 Washington, DC 20044-0663 Tel: (202) 305-0241 Tel: (202) 305-0203 Fax: (202) 353-2021 [email protected] [email protected] SHANI WALKER JOSHUA EDELSTEIN Office of the Solicitor United States Department of the Interior Washington, D.C. 20240

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THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20217

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