OSAGE TRIBE OF INDIANS v. USA

Filing 416

PUBLISHED OPINION granting plaintiff's Motion regarding defendant's burden of copying responsive documents at NARA locations.Signed by Chief Judge Emily C. Hewitt. (el3)

OSAGE TRIBE OF INDIANS v. USA

Do c. 416

In the United States Court of Federal Claims
N o . 99-550 L (in to which has been consolidated No. 00-169 L) (E -F ile d : June 12, 2009) _________________________________________ T H E OSAGE TRIBE OF INDIANS O F OKLAHOMA, Plaintiff, v. T H E UNITED STATES OF AMERICA, Defendant. _________________________________________ W ils o n K. Pipestem, Washington, DC, for plaintiff. J o s e p h H. Kim, with whom were John C. Cruden, Acting Assistant Attorney General, Brian M. Collins, and Romney S. Philpott, Environment & Natural Resources Division, U n ite d States Department of Justice, Washington, DC, for defendant. Elisabeth C. B ra n d o n , Holly H. Clement, Ericka L. Thompson, and Kyschia Patton, Office of the S o lic ito r, United States Department of the Interior, Washington, DC, of counsel. Rebecca S a ltie l and Thomas Kearns, Office of the Chief Counsel, Financial Management Service, U n ite d States Department of the Treasury, Washington, DC, of counsel. OPINION AND ORDER H E W IT T , Chief Judge B e f o re the court are Osage Nation's Memorandum of Points and Authorities R e g a rd in g the United States' Burden of Copying Responsive Documents at NARA L o c a t io n s (plaintiff's Motion or Pl.'s Mot.), filed May 15, 2009, Defendant's Response B rie f Regarding the Burden of Copy Costs for Documents Selected by Plaintiff in D is c o v e ry (defendant's Response or Def.'s Resp.), filed May 28, 2009, and Osage N a tio n 's Reply Brief Regarding the United States' Burden of Copying Responsive D o c u m e n ts at NARA Locations (plaintiff's Reply or Pl.'s Reply), filed June 2, 2009. Plaintiff's Motion seeks to compel the United States to pay for copying and imaging costs ) ) ) ) ) ) ) ) ) ) ) ) )

D is c o v e ry Dispute; RCFC 34; T ru s t Responsibilities of the U n ite d States; Allocation of C o s ts for Copying and Imaging T ru s t Documents at National A rc h iv e s and Records A d m in is tra tio n (NARA) F a c ilitie s

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in the second phase of discovery in this case (Tranche Two discovery). See Pl.'s Mot. 1. For the following reasons, plaintiff's Motion is GRANTED. I. L e g a l Standards

" A party producing documents will ordinarily not be put to the expense of making c o p ie s for the requesting party." 7 James Wm. Moore, Moore's Federal Practice § 3 4 .1 4 [ 5 ] at 34-79 (3d ed. 2004). However, "`[d]istrict courts have great discretion over th e discovery process and over the mechanics of the trial process.'" Univ. of W. Va. Bd. o f Trs. v. VanVoorhies, 278 F.3d 1288, 1304 (Fed. Cir. 2002) (quoting Strag v. Bd. of T rs ., 55 F.3d 943, 954 (4th Cir. 1995)); see also Oppenheimer Fund, Inc. v. Sanders, 437 U .S . 340, 358 (1978) (discussing a district court's discretion under the applicable d is c o v e ry rules in the context of the class action rules). II. T h e Positions of the Parties A. P l a in tif f

P la in tif f requests that the court "rule[] that the United States is required to copy at its own expense any reasonable quantities of responsive documents identified by the O sag e Nation at National Archives and Records Administration (NARA) facilities." Pl.'s M o t. 1. Plaintiff also argues that the United States "is required by law . . . in the ordinary c o u rs e of its business as a trustee" to provide these copies. Id. at 3. Plaintiff notes that by c o p yin g the documents, defendant can "simultaneously marshal[] evidence to defend its tru s t activities." Id. Finally, plaintiff points out that the parties agreed to shift the b u rd e n s in prior discovery matters, id. at 2-5, and claims that the court has already ruled th a t defendant is specifically responsible for copying documents located at NARA f a cilitie s, Pl.'s Reply 2-4. B. D e f en d a n t

D e f en d a n t requests that the court order either "that the requesting party pay the re a so n a b le cost of reproduction" or "that the parties reach a cost-sharing agreement." Def.'s Resp. 3. Defendant argues that "[p]laintiff is presumptively responsible for the c o sts of making copies," id. at 4-5, and that the court has not previously decided this issue in this case, id. at 12-14. Defendant also contends that the costs of copying are " sig n if ica n t" in this case and that, absent cost-sharing, the costs "will disproportionately b e borne by [d]efendant." Id. at 6. Making plaintiff pay for part or all of the copies will, ac co rdin g to defendant, "promote responsible decision-making and efficiency" on the part o f the plaintiff. Id. at 7. Defendant points out that "the specific characteristics of the
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N A R A facilities make it even more reasonable" for plaintiff to pay for some of the c o p yin g costs. Id. Finally, defendant argues that the trust responsibility of the United S ta te s does not extend to the copying of documents in this case. Id. at 10-11. III. D is c u ss io n

T h e court finds that the equities in this case clearly weigh in favor of plaintiff. In th e court's view, placing the burden on the United States for copying and imaging costs is " f air and reasonable." See Marens v. Carrabba's Italian Grill, Inc., 196 F.R.D. 35, 37-38 (D . Md. 2000) ("The court is given great flexibility to order only that discovery that is re a so n a b le for a case, and to adjust the timing of discovery and apportion costs and b u rd e n s in a way that is fair and reasonable."). Both the trust relationship and the s ig n if ic a n t discovery burdens that plaintiff has already assumed in this case inform the c o u rt's decision to place the costs of copying and imaging on defendant. Rule 34 of the Rules of the United States Court of Federal Claims (RCFC) requires a party to produce documents as they are kept in the usual course of business or organize a n d label the documents to correspond to the categories in a request for documents. RCFC 34(b)(2)(E)(i). Under RCFC 34, the producing party has the option of electing one o f the two options for production authorized by the rule. RCFC 34(b)(2)(E)(i). Here, re sp o n siv e documents are located in different facilities around the country and are, in m o st cases, poorly organized. See Ak-Chin Indian Cmty. v. United States, 85 Fed. Cl. 3 9 7 , 401 (2009) (discussing how the burden of production shifts to the producing party w h e n the requesting party is "unable meaningfully to review the documents"). In the c o u rt's view, defendant in this case would normally be required to sort through v o lu m in o u s amounts of documents and produce only documents that are responsive to p la in tif f 's requests. See Montania v. Aetna Cas. & Sur. Co. (Montania), 153 F.R.D. 620, 6 2 1 -2 2 (N.D. Ill. 1994) (imposing sanctions on a party for producing irrelevant and u n re s p o n s iv e documents). In order to mitigate the burden on defendant of sorting through excessive numbers o f documents, plaintiff and defendant have cooperated and entered into iterative ag ree m en ts pursuant to which plaintiff and defendant visit locations where documents are s to re d and plaintiff selects specific groups of documents for defendant to produce. See P l.'s Mot. 1-4. Plaintiff has taken on these responsibilities at great cost even though d e f en d a n t would, ordinarily, be required to bear much of this burden. See Montania, 152 F .R .D . at 621-22. The court views it to be "fair and reasonable" for defendant to pay for th e copying and imaging of documents, which defendant would otherwise have to p ro d u c e in accordance with RCFC 34.

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F u r th e r, and importantly, plaintiff is a trust beneficiary of a trust as to which the U n ite d States is the trustee. See United States v. Mason, 412 U.S. 391, 398 (1973) (" T h e re is no doubt that the United States serves in a fiduciary capacity with respect to [ th e Osage Nation] and that, as such, it is duty bound to exercise great care in a d m in is te rin g its trust."); Short v. United States, 50 F.3d 994, 999 (Fed. Cir. 1995) (n o tin g the "high fiduciary duty" the government owes as trustee to Native American trib e s). Accordingly, plaintiff is entitled to "material information needed by beneficiaries f o r the protection of their interests." See Restatement (Third) of Trusts § 82(1)(c) (2007). The court finds that the documents at issue in this case contain "material information n e e d ed by beneficiaries for the protection of their interests." See id. It is irrelevant that s o m e of these documents may be public documents. As the court stated in earlier proceedings in this case: T h e availability of other sources of information "is irrelevant" because . . . the government [has an] obligation, as a fiduciary, to provide complete a n d accurate information. The Osage Nation is entitled to all documents re late d to the trust, even if similar information is contained in multiple d o c u m e n ts . The only basis for the government to refuse to produce d o cu m en ts is if [they] fall into one of the narrow exceptions to the fiduciary e x c ep tio n . O s a g e Nation v. United States, 66 Fed. Cl. 244, 250 (2005) (citations omitted) (alterations a n d emphasis in original). IV. C o n c lu s io n

F o r the foregoing reasons, plaintiff's Motion is GRANTED. Defendant shall bear th e costs of copying and imaging in this case. This opinion and order does not preclude d e f e n d a n t , by motion, from moving to reallocate costs for specific document requests. T h e parties are urged to contact the court at any time when they believe the in v o lv e m e n t of the court will help to secure the just, speedy, and inexpensive d e te rm in a tio n of this action. See RCFC 1. IT IS SO ORDERED. s/ Emily C. Hewitt E M IL Y C. HEWITT C h ie f Judge
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