Free Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

Case 1:00-cv-00169-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA, ) ) ) Plaintiff, ) ) ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Electronically Filed June 16, 2005 No. 00-169 L Judge Emily C. Hewitt

JOINT MOTION FOR MODIFICATION OF APRIL 15, 2005 SCHEDULING ORDER I. Introduction and Summary Plaintiff Osage Nation and Defendant United States of America jointly file this motion requesting modification of the Court's April 15, 2005 Scheduling Order ("April 15 Order"). As discussed below, the parties are currently engaged in joint efforts to locate records of the Osage Agency that are relevant to the issues in tranche one of this case. In order to allow adequate time to complete those efforts, the parties jointly request that the date for completing fact discovery be extended from July 1, 2005 to September 1, 2005 and that the date for the Osage Nation's expert reports based on that fact discovery be extended from July 14, 2005 to September 14, 2005 and the date of the Government's responsive expert reports based on fact discovery be extended from August 18, 2005 to October 18, 2005. The parties are not requesting any extension of the briefing schedule for the motion that the Government filed on July 14, 2005 to dismiss, in part, Plaintiff's tranche one claims. The parties believe that approval of this joint request will not prevent the Court from scheduling the trial in this case for the winter of 2005-2006 as discussed at prior status conferences.

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II.

Background Pursuant to the Court's April 15 Order, during the last several months, the parties have

been engaged in extensive fact discovery concerning the issues in tranche one of this case.1 During the week of April 25, 2005, the parties met in Pawhuska, Oklahoma to conduct informal discovery. During that week, the Government permitted the Osage Nation to inspect and copy numerous documents at the Osage Agency, primarily from the tranche one lease files, and to conduct informal interviews of various agency employees. During that same week, Plaintiff permitted the Government to inspect and copy its records in response to the Government's third request for production of documents, dated April 7, 2005. In addition, on April 29, May 6 and May 9, 2005, the United States produced CDs containing over 163,000 images that the Osage Nation had designated on April 6, 2005 for priority processing. Since that time, Osage Nation has had a team of legal assistants reviewing these images. To date, however, only about 80 percent of these images have been reviewed. On June 17, 2005, the United States will produce CDs containing over 28,000 images that the Osage Nation designated on May 13, 2005 for priority processing. The Osage Nation estimates that the these images cannot be reviewed prior to July 1, 2005. During the period June 1 through June 10, 2005, the Osage Nation took the deposition of Charles Hurlburt and Carol Revard, each of whom is currently employed by the Osage Agency in Pawhuska, Oklahoma, and Judy Hill, who is employed with the Office of Special Trustee ("OST")-Osage Agency. During that period, the Osage Nation also took the deposition of Newell Barker, who was Branch Chief of the Minerals Section of the Osage Agency during each of the

Under this Court's April 15, 2005 Order, tranche one issues are limited to the issues within the scope of Shoshone for five leases ("tranche one leases") and six months ("tranche one months"). The tranche one leases and months are identified in the Statement of Tranche One Claims that the Osage Nation filed on May 13, 2005.

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tranche one months. In addition, during that period the Osage Nation took the deposition of Jeanette Hana, who is Regional Director of the Eastern Oklahoma Regional Office of the Bureau of Indian Affairs in Muskagee, Oklahoma, which has jurisdiction over the Osage Agency. The Osage Nation has scheduled several additional depositions, including fact depositions and several Rule 30(b)(6) depositions of the Department of the Interior ("DOI"), the Department of the Treasury ("DOT"), and the Bureau of Indian Affairs ("BIA"). These depositions have been scheduled for Pawhuska, Oklahoma and Washington, DC and will take the entire week of June 20 and part of the week of June 27. In addition, the United States has scheduled a deposition of a former employee of the Osage Tribe for the week of June 27 in Washington, DC. On May 31, 2005, the United States served its Second Set of Interrogatories and Requests for Admission on the Osage Nation. The Plaintiff's response is currently due on June 30, 2005. The Osage Nation has served its First Set of Interrogatories and Request for Production of Documents on the United States. Responses to those discovery requests are currently due on June 20, 2005. The Parties are currently engaged in joint efforts to locate documents that both parties believe are highly relevant to the tranche one issues. The documents include materials related to the royalty payments that Osage Agency received under the tranche one leases for the tranche one months and materials related to the investments made by DOI of tribal trust funds. The parties estimate that these joint efforts can be completed by September 1, 2005. III. Good Cause Exists For Granting The Parties' Joint Motion For Modification Of The Court's April 15 Order Good cause exists for granting this joint request for modification of the Court's April 15 Order. As noted above, during the last several months, the parties have been engaged in extensive discovery concerning the issues in tranche one of this case. These efforts have been characterized

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by a great deal of cooperation, many instances of informal rather than formal discovery, and few discovery disputes. In spite of these efficient efforts, however, neither party will be able to complete its fact discovery for tranche one issues by the current deadline of July 1, 2005. The parties joint efforts to search for documents relevant to tranche one issues provides an additional reason for granting this joint request for modification. As the Court is aware from prior status conferences, the Government has identified over twenty thousand boxes that contain documents that may be relevant to this litigation. Although Plaintiff has inspected several thousand boxes and received over 160,000 images for tranche one and over 421,647 images in total, the documents relevant to tranche one have not all been located. The parties have derived a joint process to specify the additional documents that are required, to identify the likely boxes that contain the specified documents, and to search the boxes for the specified documents. While the ongoing efforts of the parties to obtain the documents relevant to tranche one have been productive, the parties' joint efforts are still ongoing. Approval of this joint request will permit the parties to complete these efforts by September 1, 2005. The inability to locate all the documents relevant to tranche one issues has a ripple effect on the remainder of the pre-trial schedule. For example, in the absence of all of the relevant tranche one documents, the experts retained by the parties cannot prepare the kind of reports that would be most helpful to the Court. If the parties were required to prepare those reports by the current deadlines, the incomplete status of the document review would lead to expert reports of a general nature that would not focus the issues for trial. Similarly, the requested modifications to the Court's April 15 Order would allow the parties to proceed with more efficient and focused 30(b)(6) depositions. With the additional time, Plaintiff will be able to complete the depositions of the fact witnesses and, based on those depositions, narrow the topics that the 30(b)(6) witnesses will need to address. Further, the 4

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30(b)(6) witnesses will need to review documents that the parties are still jointly seeking in order to be able to testify to matters "known or reasonably available" to DOI regarding the tranche one leases and months. The parties believe that modification of the April 15 Order is also required due to unresolved privileged claims. The parties have briefed this issue for the Court and Defendant United States has submitted various records to the Court for an in camera review. In addition to document production, this privilege issue has limited the scope of testimony during the depositions of various employees and former employees of the Osage Agency. As a practical matter, those depositions cannot be completed until those privilege claims are resolved. Approval of this joint request for modification would not in any way change the briefing schedule for the motion to dismiss that the Government filed on June 14, 2005. The briefing of that motion would continue in accordance with the deadlines established in the Court's April 15, 2005 Order. In the parties' view, approval of this joint request would still permit the Court to schedule the trial in this case during the winter of 2005-2006 as discussed at prior status conferences. In that regard, Plaintiff Osage Nation further notes that one of its experts has prior commitments during the two week period beginning December 5, 2005. That expert would be available for trial during the months of January and February, 2006. IV. Conclusion For the foregoing reasons, the parties respectfully request that the Court's April 15, 2005 Scheduling Order be modified as discussed above.

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Respectfully submitted,

KELLY A. JOHNSON Acting Assistant Attorney General s/ Brett D. Burton BRETT D. BURTON United States Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Fax: (202) 353-2021 Counsel of Record for Defendant United States of America

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

s/ Martin J. LaLonde MARTIN J. LALONDE 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 Attorney for Defendant United States of America OF COUNSEL: Stephen Simpson Attorney Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 219-1659 6

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Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Services U.S. Department of the Treasury 401 14th Street, S.W. Room 552A Washington, D.C. 20227 Telephone: (202) 874-2567 Fax: (202) 874-6627 Dated June 16, 2005

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