Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 191

Filed 03/02/2006

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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. ) __________________________________________)

Electronically Filed: March 2, 2006 No. 99-550L (into which has been consolidated No. 00-169L) Judge Emily C. Hewitt

DEFENDANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL REVISED WITNESS AND EXHIBIT LISTS OUT OF TIME Defendant hereby moves for leave to file Supplemental Revised Witness and Exhibit Lists, which will consist of two additional witnesses and two additional documents. The witnesses and documents possess relevant information concerning allegations of document spoliation revealed at several depositions held at the Osage Agency on February 11, 2006. Defendant offers Melissa Curry, the current Superintendent of the Osage Agency ("Agency"), for purposes of rebutting testimony recently-revealed by Plaintiff at the depositions of Stanlee Ann Mattingly and Vann Bighorse held on February 11, 2006, pertaining to the Agency's alleged destruction of trust documents. This Court should be permitted to hear all evidence relevant to the Plaintiff's allegations, especially in circumstances involving the specter of destruction of evidence. Defendant's profer in this regard will be no surprise to the Plaintiff, as Ms. Curry is listed as a testifying witness on the current trial schedule ("TV-Guide") submitted to the Court at the PreTrial Conference held February 16-17, 2006. Additionally, Ms. Curry is presently scheduled to be deposed by Plaintiff in Pawhuska, Oklahoma, on March 8, 2006. Defendant also offers Julie Kelly, Records Management Specialist with the Office of Trust

Case 1:99-cv-00550-ECH

Document 191

Filed 03/02/2006

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Records. At times relevant to Plaintiff's document-destruction allegations, Ms. Kelly was a Regional Records Officer and Management Analyst at the Muskogee Regional Office. If permitted to testify at trial, Ms. Kelly will discuss issues within her personal knowledge pertaining to document management, retention and disposal policies employed at the Osage Agency for times relevant to this dispute. Ms. Kelly's testimony is particularly probative with regard to statements made by Plaintiff's fact witnesses at their depositions held February 11, 2006, relating to the alleged destruction of trust documents. Defendant only recently identified Ms. Kelly's testimony as relevant based upon these statements made by Plaintiff's witnesses. Moreover, counsel for Defendant did not speak personally to Ms. Kelly until March 1, 2006. Defendant should be afforded the opportunity to present substantive evidence of its own in rebuttal to Plaintiff's allegations of document destruction. As the finder of fact, this Court should be permitted to weigh all relevant evidence. Ms. Kelly is available to be deposed in Pawhuska, Oklahoma during the week of March 6, 2006. As counsel for the Plaintiff will be in Pawhuska during that week taking other depositions, the risk of prejudice is nonexistent. Further, Defendant anticipates that Ms. Kelly's direct examination will only take .5 hours. In connection with Ms. Kelly's testimony, Defendant expects to offer 16 Bureau of Indian Affairs Manual ("BIAM") 4600, Release 1 (July 12, 1989) and 15 BIAM Supp. No. 3, App. 2, Release 1 (February 11, 1977), which set forth requirements and official policy for the filing and disposition of records. This document will be offered in rebuttal to statements made by witnesses for Plaintiff alleging destruction of documents. For the foregoing reasons, Defendant respectfully moves for leave to file a supplemental revised witness list and a supplemental revised exhibit list.

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Case 1:99-cv-00550-ECH

Document 191

Filed 03/02/2006

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Respectfully submitted this 2nd of March, 2006,

SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

s/ Brett D. Burton BRETT D. BURTON United Sates Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Counsel of Record for Defendant

s/ Martin J. LaLonde MARTIN J. LALONDE KEVIN WEBB United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0247 Fax: (202) 353-2021 Attorneys for Defendant

OF COUNSEL: Elisabeth Brandon Brenda Riel Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 -3-

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Washington, D. C. 20240 Telephone: (202) 208-4218 Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Service U.S. Department of the Treasury 401 14th Street, S.W. Washington, D.C. 20227 Telephone: (202) 874-6877 Fax: (202) 874-6627

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