Free Motion to Compel - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE OSAGE TRIBE OF INDIANS OF OKLAHOMA,

) ) ) Plaintiff, ) ) v. ) ) ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

No. 99-550 L (into which has been consolidated No. 00-169 L) Judge Emily C. Hewitt

PLAINTIFF OSAGE NATION'S MOTION TO COMPEL BRADLEY D. BRICKELL TO COMPLY WITH SUBPOENA DUCES TECUM Pursuant to Rule 45 of the United States Court of Federal Claims, Plaintiff Osage Nation moves the Court for an order compelling its former attorney of record in this matter, Bradley D. Brickell, to comply with the subpoena duces tecum served on him on May 29, 2008 (attached as Exhibit A). Mr. Brickell has refused to turn over to the Osage Nation the materials he obtained, received, or generated in connection with his previous representation of the Osage Nation in this matter. These materials are relevant to this action and necessary for the Osage Nation to litigate its claims. The subpoena seeks these documents, under five numbered rubrics (some of which overlap): (1) case files from representation of the Osage Nation in this matter; (2) documents related to oil production, leasing, and sales in Oklahoma or Kansas from 1974 to 1990; (3) documents showing the sales price of oil in Oklahoma or Kansas from 1974 to 1990; (4)

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documents related to non-oil mineral leasing in Osage County; and (5) documents related to the United States' management of the mineral resources or funds of the Osage Nation. The subpoena was served on Mr. Brickell at his office in Oklahoma City, Oklahoma, and specified as the place of production a copying service chosen by the Osage Nation, "Ikon Document Services," also in Oklahoma City. The return date on the subpoena is June 4, 2008. On June 3, 2008, Mr. Brickell delivered his objections to the subpoena, which are attached as Exhibit B. Mr. Brickell has raised eight numbered objections. Five objections--Objections 1, 3, 5, 7, and 8--lack merit. These are discussed in Parts I through III below. Two of his objections, 4 and 6, have merit, as discussed in Part IV. Part V explains that the remaining objection, number 2, is too vague to sustain. ARGUMENT I. THE SUBPOENA IS VALID AND ENFORCEABLE. Mr. Brickell raises two objections with respect to the validity of the subpoena, neither of which has any legal basis. In Objection 1, he argues incorrectly that this Court "has no jurisdiction to issue subpoenas to non-parties in the Western District of Oklahoma. Such a subpoena must be issued out of the local federal district court." The jurisdiction of the Court of Federal Claims has no territorial limits within the United States, and the Western District of Oklahoma is no exception. The specialized jurisdiction of the Court necessitates a grant of nationwide power to compel compliance with its orders. With respect to subpoenas, Congress has specifically provided that this Court has unlimited jurisdiction to issue "subpoenas requiring the production of books, papers, documents or tangible things by any party or witness having custody or control thereof . . . for purposes of discovery or for use of the things produced as

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evidence." 28 U.S.C. § 2521(a) (2000) (emphasis added). "[C]ompliance" with the Court's subpoenas "shall be compelled as provided in the rules and orders of the court." Id. The Court's nationwide subpoena power is reflected in its Rule 45, which, unlike most of this Court's rules, differs substantively from its source, Fed. R. Civ. P. 45. As noted in the official commentary to RCFC 45, "RCFC 45 conforms to FRCP 45 to the extent feasible given the court's nationwide jurisdiction." Notably, although Fed. R. Civ. P. 45(a)(2)(C) requires that a subpoena for the production of documents must issue "from the court for the district where the production . . . is to be made," RCFC 45 omits subpart (a)(2) entirely, which is designated as "not used." Moreover, this Court has nationwide power to enforce its subpoenas: it has "power to punish by fine or imprisonment, at its discretion, such contempt of its authority as . . . disobedience or resistance to its lawful writ, process, order, rule, decree, or command." 28 U.S.C. § 2521(b)(3). Mr. Brickell also objects to the signature on the subpoena. Objection No. 5 is that "[t]he subpoena is not signed by or on behalf of the attorney of record for the Plaintiff." He cites no legal support for this baseless objection. Any attorney admitted to practice before this Court can sign subpoenas on the Court's behalf. As RCFC 45(a)(3) provides: "An attorney as officer of the court, authorized to sign filings under RCFC 83.1, may . . . issue and sign a subpoena on behalf of the court." RCFC 83.1 in turn provides that "[a]ny attorney who is a member of the bar of this court may sign any filing . . . ." The subpoena was validly signed by Merrill Godfrey, a member of the bar of this Court. Thus, the signature complies in every respect with the applicable rules.

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Presumably, Mr. Brickell has confused the manner in which "filings" must be signed with the manner in which subpoenas must be signed. When a filing is signed by anyone other than the attorney of record for a party, the name that is signed must still be that of the attorney of record. See RCFC 83.1 (filings must be signed "in the attorney of record's name"). In that situation, the signer must "add[] the following after the name of the attorney of record: `by [the signing attorney's full name].'" This ensures that the attorney of record is still subject to RCFC 11 with respect to every filing. See id. ("Authorization to sign filings shall not relieve the attorney of record from the provisions of RCFC 11."). By contrast, subpoenas are not subject to Rule 11 (Rule 45(c)(1) applies instead). Accordingly, RCFC 45 includes no requirement that subpoenas be signed in the name of the attorney of record. And it references RCFC 83.1 only with respect to who may sign the subpoena, not whose name must be signed: "An attorney as officer of the court, authorized to sign filings under RCFC 83.1, may . . . issue and sign a subpoena on behalf of the court." Indeed, as this language indicates, a subpoena is not signed on behalf of the attorney of record, but on behalf of the Court itself. Cf. Fed. R. Civ. P. 45, Adv. Comm. Note to 1991 Amendment ("Paragraph (a)(3) modifies the requirement that a subpoena be issued by the clerk of court. Provision is made for the issuance of subpoenas by attorneys as officers of the court. . . . Subpoenas were long issued by specific order of the court."). In sum, the subpoena is valid and enforceable. II. MR. BRICKELL HIMSELF HAS NO VALID CLAIM OF PRIVILEGE, VIS-ÀVIS THE OSAGE NATION, WITH RESPECT TO DOCUMENTS RELATED TO HIS REPRESENTATION OF THE OSAGE NATION. Objection No. 3 is that the subpoena seeks documents that are privileged or are work product as to the "Osage Tribe of Shareholders" (a newly coined term of Mr. Brickell's). Objection No. 7 is similar: "[i]f it is eventually determined that the Osage Nation is not one and 4

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the same as the Osage Tribe of Indians formed pursuant to the 1906 Act, then a portion of the documents are protected from the `Nation' by attorney-client privilege and attorney work product privilege . . . ." These objections conflict with this Court's prior ruling that Mr. Brickell had an attorney-client relationship with the Osage Nation. See Osage Tribe v. United States, 81 Fed. Cl. 340, 343-48 (2008). A corollary of that ruling is that any privilege resulting from the attorneyclient relationship belongs to the Osage Nation as the former client. Therefore, Objections 3 and 7 must be rejected. III. EVEN IF THE DOCUMENTS SOUGHT BY THE SUBPOENA ARE "AVAILABLE FROM OTHER SOURCES," AS MR. BRICKELL CLAIMS, THAT IS NOT A VALID OBJECTION. In Objection No. 8, Mr. Brickell admits that he has "[m]any documents that might be relevant to this case." He nevertheless refuses to produce them because he believes that they "are available from other sources," such as from the United States and from oil producers. Undoubtedly, in his capacity as the Osage Nation's lawyer, Mr. Brickell obtained relevant documents from persons other than himself. Of course, most documents can be obtained from more than one source. It is not a requirement for a valid subpoena that the only copy of a document sought be in the hands of the subpoenaed person. IV. MR. BRICKELL'S OBJECTIONS TO BURDEN AND OVERBREADTH CAN BE ALLEVIATED BY ELIMINATING REQUEST NO. 2, WHICH IS HEREBY WITHDRAWN. Objections 4 and 6 contest the burdensomeness and breadth of the subpoena. More specifically, Objection No. 6 states that "[a]lmost every file in [Mr. Brickell's] office would be responsive to document category No. 2." These objections are well taken with respect to

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category No. 2, and the Osage Nation therefore withdraws that particular request. The other four document requests are sufficient to describe the documents sought by the Osage Nation.1 V. MR. BRICKELL'S OBJECTION BASED ON HIS PURPORTED ATTORNEY'S LIEN IS VAGUE. Objection No. 2 is based on Mr. Brickell's purported "attorney's possessory lien" on some of the subpoenaed materials, for certain unspecified "unpaid fees and costs, including a large amount of unreimbursed copy expenses." Although Mr. Brickell apparently believes the Osage Nation knows what he is referring to, the Osage Nation's current counsel has been unable to determine the details of the purported lien. The Osage Nation is generally aware that Mr. Brickell claims that it owes him money, but the Osage Nation's current counsel has been unable to get Mr. Brickell to provide any details of the claim--not even the amount of the claim. When the Osage Nation's current counsel wrote to Mr. Brickell asking for the documents, Mr. Brickell referred without elaboration to his previous correspondence with a former lawyer for the Osage Nation named Geoffrey Standing Bear. See Exhibit C (letter from B. Brickell to W. Pipestem dated Apr. 25, 2008), responding to Exhibit D (letter from W. Pipestem to B. Brickell dated Apr. 24, 2008). The Osage Nation's current counsel has unsuccessfully attempted to obtain the referenced correspondence, and subsequently called Mr. Brickell to inquire regarding the details of the lien, but Mr. Brickell did not return the call. Unless Mr. Brickell states this objection with more particularity and identifies the evidence that he relies on to support his lien claim, neither the Osage Nation nor the Court can

To the extent that Objections 4 and 6 could be read to apply to these other four requests, the objections lack merit. A subpoena that seeks documents generated or obtained in connection with this very litigation is not burdensome or overbroad.

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assess the objection's validity. The objection as stated is too vague to be given any consideration or weight. CONCLUSION The Court should enter an order compelling Mr. Brickell to comply with numbered paragraphs 1, 3, 4, and 5 of the subpoena served on him by the Osage Nation.

DATED: June 5, 2008

Respectfully submitted, s/Wilson K. Pipestem WILSON K. PIPESTEM Pipestem Law Firm, P.C. 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 419-3526 Fax: (202) 659-4931 [email protected] Attorney for Plaintiff Osage Nation

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CERTIFICATE OF SERVICE I certify that on June 5, 2008, I caused copies of PLAINTIFF OSAGE NATION'S MOTION TO COMPEL BRADLEY D. BRICKELL TO COMPLY WITH SUBPOENA DUCES TECUM with Exhibits A through D to be sent to Bradley D. Brickell, by e-mail to [email protected], and by first-class mail, postage prepaid, to 400 Hightower Building, 105 North Hudson, Oklahoma City, Oklahoma, 73102.

s/Wilson K. Pipestem WILSON K. PIPESTEM

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EXHIBIT A

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EXHIBIT A DOCUMENTS TO BE PRODUCED DEFINITIONS As used here, the term "document" has its usual meaning and also includes, but is not limited to, all correspondence, all pleadings, all contracts, all drafts, all discovery requests and responses (including subpoenas and responses thereto), all privileged information, all work product, all information created or stored electronically, all video recordings, all audio recordings, all transcripts, and all other materials within the meaning of the word "document" as used in Federal Rule of Civil Procedure 34(a). As used here, the term "you" and related pronouns refer to you personally, any of your agents, any of your partners, any legal or natural persons or entities in your employ, and any legal or natural persons or entities under your control through contract or otherwise. DOCUMENT CATEGORIES 1. All documents you created or received or otherwise have in your possession, custody, or control in connection with or as a result of your previous representation of the Osage Tribe of Indians of Oklahoma or Osage Nation related to the captioned action or any related or similar action. All documents related to oil leases, oil leasing, oil production, or sales of oil, if such documents relate in any way to oil produced in Oklahoma or Kansas in the years 1974 to 1990. This includes but is not limited to leases, sales contracts, division orders, price postings, offers of sale, reports, and any similar documents. All documents setting, reflecting, or relevant to the price or sum or value paid for oil produced in Oklahoma or Kansas in the years 1974 to 1990. All documents related to any other mineral leases, mineral leasing, mineral production, or sales of minerals from the subsurface estate in Osage County, Oklahoma. All documents related to the United States' management of the mineral resources or funds of the Osage Nation or Osage Tribe of Indians of Oklahoma.

2.

3. 4.

5.

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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