Cobell v. Babbitt, Civ. No. 96-1285 (D. D.C. 2/22/1999), Civ. No. 96-1285.
| Decision Date | 22 February 1999 |
| Docket Number | Civ. No. 96-1285. |
| Parties | ELOISE PEPION COBELL, et al., Plaintiffs, v. BRUCE BABBITT, Secretary of the Interior, LAWRENCE SUMMERS, Secretary of the Treasury, and KEVIN GOVER, Assistant Secretary of the Interior, Defendants. |
| Court | U.S. District Court — District of Columbia |
This case comes before the court pursuant to the court's February 22, 1999 Order holding then Secretary of the Interior, Bruce Babbitt, the Secretary of the Treasury, Robert Rubin, and the Assistant Secretary of the Interior, Kevin Gover, in contempt of court. In accordance with that decision, the court awarded plaintiffs "all expenses and reasonable attorneys' fees caused by the defendants' failure to obey the court's orders of November 27, 1996, and May 4, 1998." See Cobell v. Babbitt, 37 F. Supp.2d 6, 37 (D.D.C. 1999). On April 6, 1999, plaintiffs submitted a Statement of Fees and Expenses claiming a total of $2,366,684.00 for the seven attorneys and experts involved in the trial. See Pls.' Statement of Fees and Expenses at 2. One month later, defendants responded to plaintiffs' claim. While conceding to the sanction award and accepting the rates demanded, defendants challenged the plaintiffs' claimed hours, alleging duplication, inadequate documentation, and inclusion of hours not "caused by" the acts of contempt. See Defs.' Resp. to Pls.' Statement of Fees and Expenses at 9-10. Defendants, eliminating "noncompensable" or undocumented time and applying monthly percent reductions to questionable remaining hours, suggested a $476,729.46 total award. See id. at 10. Plaintiffs replied on May 19, 1999, again asserting that defendants' contemptuous conduct "caused" them to incur all the included hours and proposing the award of the "uncontested" $476,729.46 before completion of the court's deliberation on the full request. See Pls.' Reply to Defs.' Opp'n to Pls.' Statement of Fees and Expenses Related to Defs.' Contemptuous Conduct at 3. Defendants moved for leave to file a surreply, arguing therein that they offered the $476,729.46 only in full resolution of the fee dispute. See United States' Surreply in Resp. to Pls.' Statement of Fees and Expenses [Defs.' Surreply] at 2 n. 1. In the alternative, defendants argued again for exclusion of "unrelated" charges and application of monthly percent reductions. See id. at 2-3.
In light of the parties' continuing disagreement over the appropriateness of plaintiffs' fee requests, the court independently reviewed plaintiffs' submitted hours. After "painstaking review of each time entry," see Jones v. Clinton, No. 94-290, slip op. at 12 n. 8 (E.D. Ark. 1999), the court awards expenses and attorneys' fees of $624,643.50.
In 1996, this court certified a class of Native Americans, represented by the five named plaintiffs (FNP), to bring a claim against the federal government for mismanagement of trust funds.1 See Cobell, 37 F. Supp.2d at 11. Plaintiffs seek both a "retrospective" accounting of the government's Individual Indian Money (IIM) trust account system and a "prospective" court order requiring the government to align its management of the account system with statutory and common law requirements of trust management. See id. The case was bifurcated to address each of these issues separately. As the case inched toward trial, plaintiffs encountered a plethora of discovery obstacles. Significant among these obstructions was defendants' failure to comply with the court's November 27, 1996 Production Order and May 4, 1998 Scheduling Order regarding production of documents for the FNP and their predecessors in interest.
On February 22, 1999, after determining that defendants had failed, as of the June 30, 1998 court-ordered deadline, see May 4, 1998 Scheduling Order ¶ 3(b), to comply with paragraph 19 of the court's First Order for the Production of Information ordering the release of "all documents, records, and tangible things which embody, refer to, or relate to IIM accounts of the five named plaintiffs or their predecessors in interest," see First Order for the Produc. of Information, ¶ 19, the court held the Secretary of the Treasury, the Secretary of the Interior, and the Assistant Secretary of the Interior in contempt of court. See Cobell, 37 F. Supp.2d at 39. In accordance with this contempt finding, and Federal Rule of Civil Procedure 37(b)(2)(E), the court awarded plaintiffs "all expenses and reasonable attorneys' fees caused by defendants' failure to obey the court's orders of November 27, 1996 and May 4, 1998." See id. at 37. Defendants readily conceded that they owed such fees. See id.
This case determines the amount of the attorneys' fees and expenses from that contempt holding. See id. The following discussion does not detail the merits or claims central to the underlying litigation, but tracks instead the progress, and frustration, of discovery, providing a background to the court's analysis of acceptable fee and expense awards.
At the outset of the underlying litigation, plaintiffs and defendants agreed to jointly pursue a statistical sampling as an alternative to the complete accounting which, it appeared, the government would be unable to provide. See Defs.' Resp. to Pls.' Statement of Fees and Expenses (Defs.' Resp.) at 14. Consulting firms retained by each party, Arthur Anderson (AA) for defendants and Price Waterhouse Cooper (PwC) for plaintiffs, suggested sampling a certain number of records which, once fully assembled, could provide a guide for future analysis of other, perhaps less complete, files. By September or October 1997, however, the relationship between the co-samplers had begun to disintegrate. See Defs.' Resp. at 14; Defs.' Resp. at Ex. 3 (). Differences of opinion as to the number of records needed for a representative sample and the correct analytical method with which to study the selected files culminated in a dispute over PwC's selection, without defendants' representatives present, of 300 records for the study. See id. at Ex. 3, Ex. 4 (transcript, June 16, 1998 Status Call, 3:18-21). Plaintiffs, however, decided to move ahead with an independent sample using the selected 300 records. See id. at 14.
In January 1998, plaintiffs filed a Motion to Compel the production of documents related to the 300 record sample that they had detailed in their First Formal Request for Production of Documents. This request sought the release, "without any temporal limitations," of all documents, including any documents related to predecessors in interest or account beneficiaries, for the selected 300 IIM accounts. See Pls.' First Formal Req. for Produc. of Docs., at 1-2. Although the court ultimately denied plaintiffs' motion in April 1998, plaintiffs expended a great deal of time, energy, and resources on the sampling effort, including traveling to Phoenix and Portland in pursuit of necessary records. See Pls.' Reply at 14. By January 1999, as defendants admitted to the court that they "could not or would not" produce the FNP and predecessor in interest documents, a frustrated PwC stopped its sampling efforts, concluding that because necessary source documentation seemed permanently elusive, continuing the sample attempt was merely "wasting substantial time and money." See Pls.' Reply, Ex. 9, at 3 (Pollner Aff.).
Discovery conflicts between plaintiffs and defendants were not, however, limited to the sampling efforts. Conflicts also arose surrounding plaintiffs' efforts to retrieve documents for one of the named plaintiffs from the Bureau of Indian Affairs' (BIA's) Winnebago, Nebraska agency. On April 8, 1998, defendants informed plaintiffs that the desired documents were under a TRO issued by the Winnebago Tribe's Tribal Court. See Cobell, 37 F. Supp.2d at 33. Thus, according to defendants, plaintiffs could not remove the documents pertaining to named plaintiff LaRose from the BIA offices. See id. The TRO in question was dissolved on April 30, 1998. See id. Rather than informing plaintiffs of the new document availability, however, defendants hid behind another excuse, this time the potential contamination of files and file storage areas with the deadly hantavirus, apparently transmitted through rat infestation. See id. While this risk might have prevented discovery between July and December, plaintiffs should have had access to the LaRose records between the TRO's dissolution and discovery of "infection" in July. See id. Although the documents were released in December 1998, their production was seriously and unnecessarily delayed, frustrating plaintiffs' efforts to collect FNP documents under paragraph 19 of the November 1996 Production Order, and even warranting a trip to the Winnebago site by plaintiffs' counsel. See Harper Aff., Ex. 6 ().
Discovery fared no better closer to home. When plaintiffs attempted, during the spring of 1998, to depose important members of government agencies in pursuit of information regarding the general status of record maintenance within the IIM system, defendants filed Motions to Quash the depositions, as well a Protective Order against the deposing of high-level individuals. See Cobell, 37 F. Supp.2d at 34. While the court denied defendants' Motions to Quash the depositions of key figures like former Special Trustee for American Indians at the Department of the Interior, Paul Homan, defendants' "tactics" caused much unnecessary delay. Although the resulting depositions did not, in most cases, shed light on the particular FNP documents contemplated by the court's violated Production and Scheduling orders, plaintiffs had spent considerable time not just deposing, but arguing their right to depose, the individuals in...
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