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

Case 1:02-cv-00024-FMA

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Filed 05/12/2008

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United States Court of Federal Claims
PUEBLO OF LAGUNA, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-24L Judge Francis M. Allegra

JOINT STATUS REPORT Plaintiff, the Pueblo of Laguna, and Defendant, the United States, (collectively, the "parties") respectfully submit this Joint Status Report regarding the parties' progress on alternative dispute resolution ("ADR") proceedings, indexation, and document production since their last joint status report filed on February 12, 2008. I. ALTERNATIVE DISPUTE RESOLUTION As previously reported, the parties agreed to set aside indexation and document production in this case to concentrate their efforts on advancing the ADR proceedings in Jicarilla v. United States, No. 02-25L and more recently in Navajo Nation v. United States, No. 06-945L. Pursuant to recent developments in Jicarilla, including the substitution of Holland & Knight as counsel for Plaintiff in that case, the parties here will resume their efforts in this case to run concurrently with efforts in Navajo. Since the last status report, the parties have had ADR Status Conferences with Senior Judge Bruggink on February 22, 2008, March 25, 2008, and April 23, 2008. As previously reported, the parties agreed with Judge Bruggink to address during ADR status conferences, as practical, all three--now two--cases for which Plaintiff is represented by the same counsel of

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record. Although discussions during the status conferences focused primarily on Jicarilla or Navajo matters, the parties addressed methodologies and discovery matters discussed below common to all three cases. The parties are optimistic that application of the methodologies which already have been developed in Jicarilla will facilitate ADR negotiations in this case, particularly in light of the parties' earlier agreement to follow the same approach to ADR proceedings in Laguna as has been used in Jicarilla. Specifically, the parties have identified the same substantial but discrete issue on which to concentrate their efforts in ADR. The parties anticipate that within the next 60 days, they will begin discussions regarding methodologies, legal issues concerning claims in ADR, the United States' defenses, and related discovery matters. The parties anticipate reporting to the Court in their next status report the progress of these discussions. Furthermore, the parties remain committed to collectively and diligently resolving any issues that may arise in ADR in this case. II. DISCOVERY PROGRESS A. Document Inspection and Production

Historically, the parties have worked cooperatively to comply with the Record Retention Order ("RRO") entered by the Court on March 19, 2004. Although document production in Laguna has not been the focus of the parties' efforts before now, initial progress has been made. As previously reported, the parties successfully complied with their obligations under RRO ¶¶ 2(a)-(b) regarding Plaintiff's inspection of records that were to be transferred from the Office of Trust Records ("OTR") to the American Indian Records Repository ("AIRR") in Lenexa, Kansas. Pursuant to RRO ¶ 2(c), Plaintiff completed its inspection and designation of relevant records for production. Defendant subsequently transferred the records to the AIRR as

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authorized under RRO ¶ (2)(d). Because the parties agreed that production of the records requested by Plaintiff were not a priority, Defendant has made only a limited number of record productions thus far. Since the last status report, Plaintiff provided to Defendant on February 26, 2008, a request for certain data and financial records related to the 1992 Arthur Andersen Reconciliation Report for Laguna. By letter of April 10, 2008, Plaintiff followed up with Defendant regarding its original request and reemphasized the importance of the materials to the ADR process. On April 15, 2008, Defendant provided to Plaintiff a general report on the status of the request, which was followed by a more specific report to Plaintiff by letter of April 24, 2008, which included target delivery dates. In its correspondence, Defendant stated that it would provide Plaintiff with a discrete portion of the requested materials during the week of May 5, 2008, and the remainder by early June 2008. Defendant sent to Plaintiff by overnight mail the initial materials on May 9, 2008. As discussed during the parties' April 23, 2008 ADR Status Conference with Senior Judge Bruggink, Plaintiff intends to serve on Defendant a formal discovery request in this stayed case pursuant to Rule 34 of the Rules of the Court of Federal Claims. Plaintiff maintains its cooperative spirit in ADR and posits that obtaining relevant records timely will facilitate the resolution of issues in ADR. Defendant has expressed concerns to Plaintiff regarding Plaintiff's stated intention to serve discovery requests, because Defendant has not yet completed the record production called for in the RRO. Plaintiff notes that paragraph 10 of the ADR Confidentiality Agreement and Protective Order agreed to by the parties and entered by the Court on June 2, 2005 [Doc. 106] provides that "this Order is not intended and shall not be construed to modify the provisions of

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the CAPO or to limit or affect the parties' rights to pursue discovery in this action pursuant to the Rules of the Court of Federal Claims." In the event that Plaintiff and Defendant are not able to reach agreement on Plaintiff's intended discovery requests, the parties will likely seek the aid of Senior Judge Bruggink to resolve any disputes. Since the last report, Plaintiff has continued its discussions with tribal officials regarding the scanning and coding of relevant records in Plaintiff's possession. As previously reported to the Court, Plaintiff has been developing a plan for the time-intensive process of collecting documents from various Pueblo repositories. Plaintiff anticipates that retrieval, scanning, and coding of Laguna documents will begin within the next 45 days. B. Indexation

Pursuant to RRO ¶¶ 3(a)-(c), the parties were required to meet and confer and to develop a plan for indexing documents, data and tangible things reasonably anticipated to be subject to discovery in this case. The resulting plan was to be submitted to the Court as a proposed order under RCFC 16(e). Before the parties shifted focus to the matters discussed above, they were working cooperatively to comply with these obligations. As previously reported, the parties have had prior discussions regarding Defendant's proposed indexation plan which contemplates a site-by-site review of relevant records. As indicated above, the parties anticipate that within the next 60 days, they will resume discussions to develop an indexation plan. III. CONCLUSION The parties will continue to work together to advance the ADR proceedings and resolve issues as they arise. Unless otherwise directed by the Court, the parties will file their next status report on August 11, 2008.

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Respectfully submitted this 12th day of May, 2008.

s/Alan R. Taradash by s/Daniel I.S.J. Rey-Bear Alan R. Taradash Nordhaus Law Firm, LLP 405 Dr. Martin Luther King, Jr. Ave. NE Albuquerque, NM 87102 telephone: 505-243-4275 facsimile: 505-243-4464 Attorney of Record for Plaintiff OF COUNSEL: Thomas J. Peckham Daniel I.S.J. Rey-Bear Deidre A. Lujan Nordhaus Law Firm, LLP 405 Dr. Martin Luther King Jr Ave. NE Albuquerque, NM 87102 Donald H. Grove Nordhaus Law Firm, LLP 1401 K Street NW, Suite 801 Washington, DC 20005

s/Robert W. Rodrigues by s/Daniel I.S.J. Rey-Bear Robert W. Rodrigues United States Department of Justice Environment and Natural Resources Div. Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 telephone: 202-353-8839 facsimile: 202-353-2021 Attorney of Record for Defendant OF COUNSEL: Gladys Cojocari Holly H. Clement Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 TERESA DAWSON Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227