Bonnet et al v. Harvest (US) Holdings et al

Filing 70

MEMORANDUM DECISION and Order-the court REVERSES IN PART the Ruling and Order 56 , holding that the Ute Tribe need not fully comply with the sixth discovery request, and need not comply at all with the ninth and tenth discovery requests, as explained in order. The court also, however, AFFIRMS the Ruling and Order IN PART, and outside of the above exceptions, the Ute Tribe must comply with Plaintiffs subpoena, as interpreted in this order. Signed by Judge Clark Waddoups on 3/23/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

ROBERT C. BONNET and BOBBY
BONNET LAND SERVICES,

MEMORANDUM DECISION
AND ORDER

Plaintiffs,
Case No. 2:10-cv-217 CW
v.
Judge Clark Waddoups
HARVEST (US) HOLDINGS, INC. et al.,
Defendants.

Plaintiffs served non-party Ute Indian Tribe of the Uintah and Ouray Reservations (“the
Ute Tribe”) with a Subpoena Duces Tecum as part of its discovery in this case. The Ute Tribe
moved to quash the subpoena, asserting tribal sovereign immunity. Magistrate Judge Brooke
Wells issued a Ruling and Order on August 11, 2011 denying the Ute Tribe’s motion to quash
the subpoena. [Ruling and Order (“Ruling and Order”), Dkt No. 56 (Aug. 29, 2011)]. The Ute
Tribe objected, Plaintiffs responded, and both parties submitted supplemental memoranda.
Briefing on the objection was completed on February 15, 2012. For the reasons stated below,
the court now AFFIRMS IN PART and REVERSES IN PART the contested Ruling and Order.
BACKGROUND
According to the complaint, Robert C. Bonnet is a petroleum landman who, through his
sole proprietorship Bobby Bonnet Land Services, entered into a contract with the Ute Tribe to
serve as an independent contractor and consultant. Defendants Harvest (US) Holdings, Inc.,
Branta Exploration & Production, LLC, and Ute Energy LLC made various business proposals to
the Ute Tribe, which Bonnet rejected because he did not believe they were in the best interests of

the Tribe. Because of his opposition to these oil and gas proposals, the defendant companies and
various individuals, some of whom are also listed as defendants in this action, allegedly caused
Bonnet’s contract with the Ute Tribe to be prematurely terminated. Bonnet filed suit in this
court on March 10, 2010, alleging intentional interference with economic relations, libel,
slander, intentional infliction of emotional distress, and civil conspiracy.
During the time set aside by parties for discovery, Plaintiffs served a Subpoena Duces
Tecum on the Ute Tribe, who is not a party in the case. The Subpoena made the following
document requests:
Request No. 1: Any and all documents relating to any communication between or
among you and Robert Bonnet.
Request No. 2: Any and all documents relating to communication prepared by
Robert Bonnet during his contract employment with you.
Request No. 3: Any and all documents relating to communication between or
pertaining to Branta and Robert Bonnet.
Request No. 4: Any and all documents relating to communication between or
pertaining to Harvest and Robert Bonnet.
Request No. 5: Any and all documents relating to communication between or
pertaining to Bureau of Indian Affairs and Robert Bonnet
Request No. 6: Any and all documents regarding negotiations of Oil and Gas
Leases for Individual Allotee Owners.
Request No. 7: Any and all documents relating to the September 9, 2008 business
meeting at Falcon’s Ledge.
Request No. 8: Any and all documents relating to transactions with Berry
Petroleum, Ute Energy, and the Ute Indian Tribe.
Request No. 9: Any and all communications received by members of the Ute
Indian Tribe pertaining to Robert Bonnet.

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Request No. 10: Any and all documents, minutes, recordings video or otherwise,
relating to meetings conducted by the Ute Indian Tribe Business Committee
pertaining to Robert Bonnet, Harvest, Branta, and/or Ute Energy.
[Subpoena, Exhibit A to Non-Party Movant Ute Indian Tribe’s Memorandum in Support of
Motion to Quash Subpoena Duces Tecum (“Memorandum to Quash”), Dkt No. 34 (Mar. 23,
2011)]. The Ute Tribe objected to these requests, invoking tribal sovereign immunity and
making several arguments under Federal Rule of Civil Procedure 45(c)(3). [Non-Party Movant
Ute Indian Tribe’s Motion to Quash Subpoena Duces Tecum (“Motion to Quash”), Dkt. No. 33
(Mar. 23, 2011)]. Plaintiffs responded that the subpoena was appropriate. [Memorandum in
Opposition to Non-Party Movant Ute Indian Tribe’s Motion to Quash Subpoena Duces Tecum
(“Opposition to Quash”), Dkt. No 39 (Apr. 13, 2011)]. The Ute Tribe then filed a reply.1 [NonParty Movant Ute Indian Tribe’s Reply in Support of the Tribe’s Motion to Quash Subpoena
Duces Tecum (“Reply”), Dkt. No 43 (May 9, 2011)].
On April 14, 2011, the case was referred to Magistrate Judge Brooke Wells, under 28
U.S.C. § 636(b)(1)(A), to hear and determine all non-dispositive pretrial matters. [Docket Text
Order Referring Case, Dkt. No. 40 (Apr. 14, 2011)]. Judge Wells ruled in favor of the Plaintiffs

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Following oral argument before Judge Wells held on June 8, 2011 on the motion to quash, the
Ute Tribe also filed a document purporting to offer additional information on the issue with the
court. [Non-Party Movant Ute Indian Tribe’s Notice of Additional Information Regarding Its
Motion to Quash Subpoena and Additional Legal Authority Releveant [sic] to the Additional
Information, Dkt. No. 46 (June 9, 2011)]. Plaintiffs responded with a motion to strike the filing.
[Motion to Strike Non-Party Movant Ute Indian Tribe’s Notice of Additional Information
Regarding Its Motion to Quash Subpoena and Additional Legal Authority Relevant to the
Additional Information (“Motion to Strike”), Dkt. No. 48 (June 17, 2011)]. In the Ruling and
Order, Judge Wells granted the Plaintiffs’ Motion to Strike. [Ruling and Order at 13]. The Ute
Tribe has not contested this decision. [See Non-Party Movant Ute Indian Tribe’s Objection to
Magistrate Judge’s Ruling & Order and Request for a De Novo Determination of the Tribe’s
Sovereign Immunity Challenge (“Objection to Ruling”) at 2, Dkt. No. 57 (Aug. 29, 2011)]. No
part of the court’s ruling today disturbs Judge Wells’ ruling on Plaintiffs’ Motion to Strike.
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on the Motion to Quash, finding that the Rule 45 challenges were not persuasive and that the Ute
Tribe’s interests were “significantly outweighed” by Plaintiffs’ need to access the information
and “under such circumstances the doctrine of tribal sovereign immunity was not intended to
extend to a non-party Tribe.” [Ruling and Order at 10]. The Ute Tribe objected to this ruling,
specifically on the grounds of sovereign immunity, and has asked the court to review the
decision. [Objection to Ruling at 4]. As will be explained below, the court now partially
overrules the Ruling and Order.
LEGAL STANDARDS
I.

TRIBAL SOVEREIGN IMMUNITY AND RULE 45 DISCOVERY
Sovereign immunity is an issue of subject matter jurisdiction. Ramey Contr. Co. v.

Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318 (10th Cir. 1982). Because it is
jurisdictional, sovereign immunity may be raised at any stage of the proceedings. Id. Therefore,
court must conduct a de novo review of the Ruling and Order. See Miner Electric, Inc. v.
Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir. 2007).
The court recognizes that the Ute Tribe is a federally recognized sovereign Indian tribe.
[Ruling and Order at 5]. As a matter of law, a federally recognized tribe “is subject to suit only
where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of
Okla. v. Mfg. Techs., 523 U.S. 751, 754 (1998); see also United States v. U.S. Fid. & Guar. Co.,
309 U.S. 506, 512 (1940) (“Indian nations are exempt from suit without Congressional
authorization.”). The question before the court is whether sovereign immunity also shields a
tribe from legal process when it, as a non-party, is served with a subpoena requesting
information and documents relevant to a civil suit. The court holds that, although tribal

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sovereignty should be considered when weighing discovery requests, sovereign immunity does
not completely and automatically excuse a tribe from complying with a subpoena.
Sovereign immunity prevents suits which would interfere with another government,
restrain or compel that government to act, or affect the sovereign’s public treasury. Dugan v.
Rank, 372 U.S. 609, 620 (1962). Therefore, tribal sovereign immunity is a “corollary to Indian
sovereignty and self-governance.” Three Affiliated Tribes of Ft. Berthold Reservation v. Wold
Eng’g, 476 U.S. 877, 890 (1986). It is “necessary to promote the federal policies of tribal selfdetermination, economic development, and cultural autonomy.” Breakthrough Mgt. Group v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1182 (10th Cir. 2010).
A.

Sovereign Immunity Is Not Unlimited
The federal government recognizes Indian tribes as “domestic dependent nations” which,

though sovereign, are also “under the sovereignty and dominion of the United States.” Cherokee
Nation v. Georgia, 30 U.S. 1, 17 (1831). The Supreme Court has observed that “because of the
peculiar ‘quasi-sovereign’ status of the Indian tribes, the Tribe’s immunity is not congruent with
that which the Federal Government, or the States, enjoy.” Three Affiliated Tribes of Fort
Berthold Reservation, 476 U.S. at 890.
The sovereign immunity of each state is protected by the Eleventh Amendment. Neither
the Eleventh Amendment nor the general doctrine of sovereign immunity shields a non-party
state from complying with a federal subpoena. See In re Missouri Dep’t of Natural Resources,
105 F.3d 434, 436 (8th Cir. 1997) (discussing discovery requested from the Missouri Department
of Natural Resources, a non-party, holding that “[g]overnmental units are subject to the same
discovery rules as other persons and entities having contact with the federal courts”) (citing

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United States v. Proctor & Gamble, 356 U.S. 677, 681 (1958)); see also University of Texas at
Austin v. Vratil, 96 F.3d 1337, 1340 (10th Cir. 1996) (stating that while sovereign immunity and
the Eleventh Amendment shield state entities from discovery as a party under Federal Rule of
Civil Procedure 11, they do not protect them from non-party discovery under Rule 45).2 Indeed,
“[f]ederal subpoenas routinely issue to state and federal employees to produce official records or
appear and testify in court and are fully enforceable despite any claim of immunity.” United
States v. Juvenile Male I, 431 F. Supp. 2d 1012,1016 (D.N.M. 2006). The Ute Tribe does not
advance any compelling arguments as to why quasi-sovereign tribes should be protected from
discovery in circumstances when states, which are fully protected by the Eleventh Amendment,
are not.
Furthermore, tribal sovereign immunity is a doctrine that has recently been subjected to
considerable judicial criticism. See Joshua Jay Kanassatega, The Discovery Immunity Exception
in Indian Country—Promoting American Indian Sovereignty by Fostering the Rule of Law (“The
Discovery Immunity Exception”), 31 Whittier L. Rev. 199, 239–244 (2009). Indeed, the
Supreme Court has recently stated “[t]here are reasons to doubt the wisdom of perpetuating the
doctrine [of sovereign immunity. Certain] considerations might suggest a need to abrogate tribal
immunity [but] we defer to the role Congress may wish to exercise in this important judgment.”
Kiowa Tribe of Okla, 523 U.S. at 758. Given the increasing hesitance of courts to apply tribal

2

Although the Ute Tribe has identified a case which holds that states are shielded from
subpoenas directed at non-party discovery, Estate of Gonzales v. Hickman, 466 F. Supp. 2d 1226
(E.D. Cal. 2006), it has not directed the court to any such authority within the Tenth Circuit. In
contrast, Tenth Circuit case law maintains, albeit in dicta, that states are not shielded from Rule
45 discovery requests. University of Texas at Austin, 96 F.3d at 1340.
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immunity, this court does not believe it is wise to expand the doctrine to protect tribes not only
from suit, but also from non-party discovery.
B.

Caselaw
The Ute Tribe urges that this doctrine would not be an expansion of the law and that

controlling precedent has already held that Indian tribes are exempt from complying with Rule
45 discovery requests. In making this argument, it cites Breakthrough Management. Group v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010) and Equal Employment
Opportunity Commission v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). Both of these
cases are inapposite. Breakthrough Management Group discusses the extent to which tribal
immunity protects tribal entities such as tribal owned casinos from direct suit. Cherokee Nation
holds that the ADEA does not apply to Indian tribes and that a tribe cannot, therefore, be sued
for a violation of its provisions. While both of these cases affirm that tribal sovereign immunity
shields an Indian tribe from direct suit under certain circumstances, as a well-established
principle, neither discusses the role that tribal sovereign immunity might play when a tribe is a
non-party to a suit. These cases, along with Cash Advance & Preferred Cash Loans v. State, 242
P.3d 1099 (Colo. 2010) and Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2006),
which the Ute Tribe also relies on, all prohibit discovery against tribes and their entities where
the tribe is being directly sued or investigated. This is not the circumstance now before the
court.
The Ute Tribe also cites Puyallup Tribe, Inc. v. Department of Game of Washington, 433
U.S. 165 (1977). The state in Puyallup Tribe brought suit against the tribe and its members to
enforce fishing restrictions. The Court dismissed the claims against the tribe on the ground of
sovereign immunity. In allowing the state to police the fishing activities of individual tribal
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members, the Court did observe that the lower courts did not have the authority to burden the
tribe with an ongoing obligation to provide the state with information on the status of tribe
members and their fishing activities. This decision did not rest on the time-limited discovery
permitted by the Federal Rules of Civil Procedure, but instead discussed the government’s ability
to impose ongoing reporting obligations upon an Indian reservation in shaping civil relief and
prospectively policing violations of state law.
In addition to these cases, the Ute Tribe also cites to United States v. James, 980 F.2d
1323 (9th Cir. 1992). This case is more on point, although it is not controlling authority. In
James, the Ninth Circuit held that the state could not enforce a subpoena against an Indian tribe
in the course of a criminal investigation against a tribal member. Professor Joshua Jay
Kanassatega has described how James, as well as a few subsequent cases which have relied on it,
is misguided. He explains that the court in James “simply got it wrong,” stating:
The discovery immunity exception, as currently applied in the federal courts, is
problematic. The court in James failed to apply the traditional balancing
approach articulated in Bryan, which weighs an individual’s interest against that
of the public interest to determine whether to enforce civil process against thirdparties
. . . . Application of the discovery immunity exception not only prevents a party
from access to [relevant] information, but it creates a huge hole in [the Federal
Rules of Civil Procedure and] can provide a patently unfair advantage to one of
the parties.3
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Professor Kanasstega also describes how adherence to the James holding that tribal sovereign
immunity bars non-party discovery requested of a tribe may actually undermine tribal autonomy.
He states the rule “sends the wrong message to those who might want to engage in commercial
activities within Indian tribes and understand that the possibility of litigation is a fact of life and
information needed to support a claim or defense is possessed by parties and non-parties alike.”
Joshua Jay Kanassatega, The Discovery Immunity Exception at 270. Kanasstega explains this
lends “greater complexity, uncertainty, and expense” to litigation and may become an obstacle to
increased economic activity on Indian lands. Id. at 271. Finally, his article describes the recent
judicial and scholarly criticism of the tribal sovereign immunity doctrine and observes that by
applying immunity broadly, the core of the sovereignty doctrine may be further eroded. Id. at
273–74. The court finds this argument persuasive.
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Joshua Jay Kanassatega, The Discovery Immunity Exception at 267–68.
The court concurs in this conclusion and adopts Professor Kanassatega’s reasoning.
Discovery requests should be governed by the classic Bryan balancing test, and not be
completely barred by the doctrine of sovereign immunity. See United States v. Velarde, 40 F.
Supp. 2d 1314, 1316 (D.N.M. 1999) (“[T]he proper procedure is to balance the sovereign
interests of the United States and the Tribe [as] courts often [do] where sovereign immunity is
asserted in an effort to quash a subpoena.”). The important principles which have inspired and
shaped the tribal sovereign immunity doctrine, including tribal self-determination, economic
development, and cultural autonomy, should inform the balancing process. Consideration of
tribal autonomy, however, should not automatically and completely bar jurisdiction and the
application of the balancing test, given the important role discovery plays in obtaining justice
and the limited burden Rule 45 discovery may impose upon non-parties.
Despite the decision of the Ninth Circuit in James, many courts, including district courts
within the Ninth Circuit, have found that Indian tribes are subject to a federal subpoena. See
United States v. Snowden, 879 F. Supp. 1054, 1057 (D. Or. 1995) (“[C]onstitutional rights of due
process, fair trial, confrontation, and compulsory process outweigh the claim of [tribal
sovereign] immunity.”). For instance, the Eighth Circuit has held that “[a]n Indian reservation
provides no sanctuary from the reach of a federal subpoena to compel testimony before a grand
jury on matters within the jurisdiction of the District Court.” In re Long Visitor, 523 F.2d 443,
447 (8th Cir. 1975). A district court within the Tenth Circuit disagreed with James and held that
tribal entities were subject to the enforcement of subpoenas in a criminal case, stating it believed
“there is every likelihood” that the Ninth Circuit would reconsider its holding in James if given
the opportunity. United States v. Juvenile Male 1, 431 F. Supp. 2d 1012, 1018 (D.N.M. 2006),
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see also Velarde, 40 F. Supp. 2d at 1315–16 (“I disagree with the James conclusion. . . . I find
that the proper procedure is to balance the sovereign interests of the United States and the
Tribe.”).
Although Juvenile Male, Velarde, Snowden, and In re Long Visitor were criminal cases, a
court has held in a civil case that tribal sovereign immunity does not bar enforcement of a federal
subpoena. Alltel Comm. v. DeJordy, No. Civ. 10-MC-00024, 2011 WL 6737666 (D.S.D. Feb.
17, 2011). In Alltel, the Oglala Sioux Tribe sought to quash a subpoena duces tecum issued in a
contract case to which it was not a party. The Oglala Sioux Tribe asserted tribal sovereign
immunity. The court, after carefully reviewing the cases discussed here, comparing tribal
sovereign immunity with state sovereign immunity, and referring to scholarly analysis, held:
The court must conclude tribal sovereign immunity constitutes no shield for the
Tribe, as a non-party, to justify noncompliance with a federal civil subpoena
duces tecum. The Tribe is neither a party to the underlying litigation . . . nor is
the tribal treasury exposed to an adverse judgment. . . . Granting the Tribe’s
motion to quash these subpoenas on the basis of tribal immunity would create [a
discovery exception] that only would be available to a tribe, tribal agency, official
or employee. It would be strange indeed if a federal subpoena were operative
against the federal government and its officers but not against a tribe.
Id. at *12 (internal quotations, citation, and alterations omitted). The court agrees with Professor
Kanassatega’s article, Judge Wells’ Ruling and Order, and the Alltel decision that tribal
sovereign immunity does not excuse a non-party tribe from complying with a subpoena, but that
the traditional balancing test should instead be applied.
II.

THE BRYAN BALANCING TEST
In United States v. Bryan, the Supreme Court explained that “the great power of

testimonial compulsion [is] necessary to the effective functioning of courts” and that “the public

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. . . has a right to every man’s evidence.” 339 U.S. 232, 330 (1950).4 Because of this, “there is a
general duty to give [evidence and any] exemption from testifying or producing records thus
presupposes a very real interest to be protected.” Id. An exemption from discovery must,
therefore, be “grounded in a substantial” interest which “outweigh[s] the public interest in the
search for truth.” Id.
The Bryan test has been incorporated into Rule 45 of the Federal Rules of Civil
Procedure, which provides that a court “must quash or modify a subpoena that” is unreasonable,
including any subpoena which “subjects a person to undue burden.” Fed. R. Civ. P.
45(c)(3)(A)(iv). In applying this test to discovery requested of a non-party Indian tribe, the court
recognizes that tribes, as quasi-sovereign nations, have a substantial interest in maintaining
autonomy. Therefore, non-party discovery that would significantly impact the tribal treasury,
require the production of private documents related to tribal governance, or interfere with the
administration of tribal services may, in those circumstances, not be permissible. See Alltel,
2011 WL 6737666, at *12 (observing a court “should consider the interests of a claim of [tribal
sovereign] immunity against the search for truth contemplated by the Federal Rules of Civil
Procedure”).
III.

REQUESTED DISCOVERY
The contested subpoena makes ten discovery requests of the Ute Tribe. Plaintiffs have

agreed to give the Tribe reasonable time to comply with the requests, and to pay all appropriate

4

The important role of information in an adversarial justice system has been well recognized
and valued in the United States. “The very integrity of the judicial system and public confidence
in the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either by the prosecution
or by the defense.” United States v. Nixon, 418 U.S. 683, 708 (1974).
11

costs, including compensation for the time needed to compile the requested documents. [Ruling
and Order at 11]. The court recognizes, however, that the requests will consequentially divert
attention of some tribal employees away from tribal affairs while compiling the requested
discovery. Therefore, very broad requests, which are likely to require significant tribal attention
and are unlikely to uncover any more relevant evidence than an appropriately narrower request,
should not be permitted.
The first discovery request asks for “all documents relating to any communication
between you [the Ute Tribe] and Robert Bonnet.” Subpoena, Exhibit A to Memorandum to
Quash. Because Plaintiff’s employment by the Ute Tribe is central to the claims made in this
case, such discovery is appropriate.
The second request seeks “documents relating to communication prepared by Robert
Bonnet during his employment with you [the Ute Tribe].” Id. Like the first request, this is
aimed at obtaining information relevant to Bonnet’s employment and job performance, which is
relevant to considerations in this suit.
The third request targets “documents relating to communication between or pertaining to
Branta and Robert Bonnet.” Id. This is potentially a broad request if it is taken to ask for all
documents pertaining to Branta in any way. The court, however, interprets the language to
request only those documents which pertain to both Branta and Robert Bonnet. When read in
this way, the discovery request is appropriately targeted to uncover relevant information and
does not unduly burden the Tribe.
The fourth request asks for “all documents relating to communication between or
pertaining to Harvest and Robert Bonnet.” Id. Again, insofar as this is interpreted as a request

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for only documents which reference both Harvest and Robert Bonnet, it is an appropriate
request.
The fifth request targets “documents relating to communication between or pertaining to
Bureau of Indian Affairs and Robert Bonnet.” Id. As an Indian tribe, the Ute Tribe is likely to
have a vast number of documents pertaining to the Bureau of Indian Affairs. However,
interpreting the language to only request documents which reference both Robert Bonnet and the
Bureau of Indian Affairs, the requested information is subject to discovery.
The sixth request seeks “all documents regarding negotiations of Oil and Gas Leases for
Individual Allottee Owners.” Id. This request is potentially very broad, and should be limited to
the relevant time period. The court, therefore, orders the Ute Tribe to produce any and all
documents regarding negotiations of Oil and Gas Leases for Individual Allottee Owners during
2008 and 2009.
The seventh discovery request asks for “documents relating to the September 9, 2008
business meeting at Falcon’s Ledge.” Id. This meeting is relevant to the dispute and the
discovery request is therefore appropriate.
The eighth request seeks “all documents relating to transactions with Berry Petroleum,
Ute Energy, and the Ute Indian Tribe.” Id. If this request is read to seek all documents the Ute
Tribe has relating to transactions with the Ute Indian Tribe, it is very broad and threatens tribal
interests in governance and autonomy. As long as the request only requires production of
documents relating to transactions which include all three parties, however, it targets acceptable
discovery.
The ninth request asks for “all communications received by members of the Ute Indian
Tribe pertaining to Robert Bonnet.” Id. Read literally, this request would require a review of
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documents held by every member of the Ute Tribe for responsive materials “pertaining,” in any
way, to Robert Bonnet. Such a request is overly broad and would impose the undue burden
prohibited by Rule 45. Even interpreting the request more narrowly to require only those
documents which the Ute Tribe has in its possession, it would still require a review of essentially
all files of any Tribe member in the Tribe’s possession. The required response to the request,
even as so limited, would impose a substantial burden on the Tribe. In balancing the need for the
information against this burden, the court finds that the Plaintiffs have failed to demonstrate a
substantial need sufficient to justify this burden. The request seems primarily aimed at obtaining
information to support Plaintiffs’ claims of slander and libel. Those causes of action require
Plaintiffs to plead the alleged slanderous and libelous statements with particularity. Williams v.
State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982). If Plaintiffs lack sufficient information to
meet this pleading requirement, they are not entitled to conduct a dragnet search to now obtain it.
Mast v. Overson, 971 P.2d 928, 933 n.6 (Utah Ct. App. 1998) (observing plaintiffs “must refrain
from filing suit precipitously . . . hoping to exploit discovery tools to uncover some previously
unknown negative comment”). This request is overly broad and unjustified. It fails to meet the
requirement for proportionality imposed by the discovery rules. See Fed. R. Civ. P. 26(b)(2)(C).
The objection to the ninth request is therefore sustained.
The tenth discovery request targets “all documents, minutes, recordings video or
otherwise, relating to meetings conducted by the Ute Indian Tribe Business Committee
pertaining to Robert Bonnet, Harvest, Branta, and or Ute Energy.” Id. This is a very broad
request, which includes many parties and is not limited in scope by time. To the extent
production of these documents is not already required by another discovery request, it appears
unlikely to the court that any such documents will be relevant to Plaintiffs’ case. Furthermore,
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the request is directly targeted to uncover discussions and decisions intrinsic to the tribal
governance process. Recognizing the importance of tribal autonomy and self-governance, as
well as the limited relevance of this overly broad request, the court quashes this portion of the
subpoena.
Although the court finds that the scope of the subpoena was overly broad, because very
few cases have addressed civil discovery of documents held by a non-party tribe, the court does
not believe that Plaintiffs unreasonably imposed “undue burden or expense” on the Ute Tribe.
Fed. R. Civ. P. 45(c). Therefore, the court will not impose sanctions or attorneys fees under
Rule 45(c).
CONCLUSION
The court does not intend to abrogate the well-established doctrine of tribal sovereign
immunity and recognizes that it may not exercise jurisdiction over an Indian tribe party, absent a
waiver of that immunity. Nevertheless, for the reasons explained above, in the case of the
requested discovery of a non-party Indian tribe, the court finds that the doctrine of tribal
sovereign immunity does not apply. There is no indication that Congress intended to exempt
quasi-sovereigns, such as the Ute Tribe, from application of Rule 45. To do so would
substantially impede the public’s right to the truth. At the same time, however, requested
discovery cannot unreasonably burden a non-party, and in the case of an Indian tribe, the
discovery requests must respect the tribal interests in maintaining independence and autonomy.
Therefore, in accord with the discussion above, the court REVERSES IN PART the
Ruling and Order,5 holding that the Ute Tribe need not fully comply with the sixth discovery
request, and need not comply at all with the ninth and tenth discovery requests, as explained
5

Dkt. No. 56 (Aug. 29, 2011).
15

above. The court also, however, AFFIRMS the Ruling and Order IN PART, and outside of the
above exceptions, the Ute Tribe must comply with Plaintiffs’ subpoena, as interpreted in this
order.
DATED this 23rd day of March, 2012.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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