        In the United States Court of Federal Claims
                                  Nos. 12-431L, 12-592L, 13-51X1

                                       (Filed: October 16, 2015)

**************************************** *
GRACE M. GOODEAGLE, et al.,              *
                    Plaintiffs,          *
 v.                                      *
                                         *
THE UNITED STATES,                       *
                    Defendant.           *
**************************************** *                     Discovery Dispute; Organization and
QUAPAW TRIBE OF OKLAHOMA,                *                     Labeling of Documents Produced in
                    Plaintiff,           *
                                                               Haphazard Fashion; Government’s
 v.                                      *
                                         *
                                                               Duty to Designate Person(s) to Testify
                                                               at Rule 30(b)(6) Deposition.
THE UNITED STATES,                       *
                    Defendant.           *
**************************************** *
THOMAS CHARLES BEAR et al.,              *
                    Claimants,           *
 v.                                      *
                                         *
THE UNITED STATES,                       *
                    Defendant.           *
**************************************** *

Nancie G. Marzulla, with whom were Roger J. Marzulla, Marzulla Law, LLC,
Washington, D.C., Stephen R. Ward and John L. Williams, Conner & Winters, LLP, Tulsa,
Oklahoma, Of Counsel, for Plaintiffs.

Stephen R. Terrell, with whom were John C. Cruden, Assistant Attorney General, and
Peter K. Dykema, Environment and Natural Resources Division, U.S. Department of
Justice, Washington, D.C., Kenneth Dalton, Shani N. Walker, and Karen Boyd, U.S.
Department of Interior, Thomas Kearns and Rebecca Saltiel, U.S. Department of the
Treasury, Of Counsel, for Defendant.


1
 The Court notes that while Goodeagle et al., Quapaw Tribe of Oklahoma, and Bear et al. have not been
officially consolidated, counsel for the parties have filed nearly identical motions, responses, and replies
concurrently in the three cases. Thus, the Court addresses the Plaintiffs’ motions for discovery relief in one
opinion.
                                                      1
                           OPINION AND ORDER ON
                  PLAINTIFFS’ MOTION FOR DISCOVERY RELIEF

WHEELER, Judge.

       In these Indian Tribe cases involving significant claims against the United States for
breach of fiduciary duty, among other things, Plaintiffs filed a motion for discovery relief
on August 14, 2015 seeking an order in their favor on the following grounds: (1) the
Government failed substantially and in multiple ways to produce documents in compliance
with Rule 34 of the Court of Federal Claims Rules (“RCFC”); and (2) the Government
failed to produce a witness or witnesses under RCFC 30(b)(6) who could respond to
designated subjects listed in the deposition notice. Plaintiffs also request the imposition of
sanctions, and the reimbursement for costs and fees associated with this motion under
RCFC 37. On September 11, 2015, the Government filed an opposition to Plaintiffs’
motion, and on September 18, 2015, Plaintiffs filed a reply. The Court deems oral
argument unnecessary.

       A. Document Production Issues

       Plaintiffs assert that, at the beginning of discovery, they served the Government with
reasonable requests for production of documents identifying specific topics relating to the
relevant issues in these cases. Plaintiffs complain that, in violation of RCFC 34, the
Government has refused to organize its responsive documents by the requested topics.
Also, Plaintiffs allege that the Government procrastinated in its document production,
producing 75 percent of the requested documents in the final six weeks of the discovery
period without any organization or labeling. Plaintiffs argue that disorganized and
unusable “data dumps” like this one are precisely an outcome that RCFC 34 is intended to
avoid. Plaintiffs ask the Court to require the Government to re-produce its documents
organized and labeled to correspond to the categories of documents contained in Plaintiffs’
requests.

       The Government opposes Plaintiffs’ motion by arguing that its document
production substantially complied with RCFC 34, and that many of Plaintiffs’ requests
were overly broad and not amenable to the categorization requirement of the rule. The
Government also asserts that it is not required to label and categorize publicly available
documents, and that it produced some of the documents as they are kept in the usual course
of business, thus negating a need to label and categorize.

       In responding to requests for production of documents, RCFC 34 requires “[a] party
[to] produce documents as they are kept in the usual course of business or [to] organize
and label them to correspond to the categories in the request[.]” RCFC 34(b)(2)(E)(i). This
requirement creates an “either/or” standard where all documents produced as they are kept
in the usual course of business do not need to be organized and labeled. See Hagemeyer

                                              2
N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598 (E.D. Wis. 2004). Above
all, documents should not be haphazardly produced. SEC v. Collins & Aikman Corp., 256
F.R.D. 403, 411 (S.D.N.Y. 2009); see also Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606,
610-11 (D. Neb. 2001) (“producing large amount of documents in no apparent order does
not comply with a party’s obligation under Rule 34.”).

      With respect to Bureau of Indian Affairs records produced from storage, this Court
previously has found that Indian documents located at facilities such as the National
Archives and Records Administration and “different facilities around the country . . . are,
in most cases, poorly organized.” Osage Tribe of Indians of Oklahoma v. United States,
87 Fed. Cl. 338, 340 (2009) (Hewitt, C.J.). In Ak-Chin Indian Community v. United States,
85 Fed. Cl. 397 (2009), the Court reviewed the document retention system at the American
Indian Records Repository (“AIRR”), where most of the documents produced by the
Government in these cases were located, and concluded that the documents stored at the
AIRR “are not maintained in the usual course of business.” Id. at 399 (Hewitt, C.J.).

        Over and above the requirements of RCFC 34, the Government as trustee has a
fiduciary duty to “provide information reasonably necessary to enable a beneficiary to
enforce his rights under the trust or to prevent or redress a breach of trust.” Restatement
(Second) of Trusts § 173, cmt. c (1959). This Court has observed that “[t]he [tribe] is
entitled to ‘material information needed by beneficiaries for the protection of their
interests’” against the Government. Osage Tribe of Indians of Oklahoma, 87 Fed. Cl. at
340 (quoting Restatement (Third) of Trusts § 82(1)(c) (2007)). Further, as trustee, the
Government “ha[s] a clear obligation to maintain trust records and furnish such records to
beneficiaries upon request. . . .” Cobell v. Norton, 240 F.3d 1081, 1093 (D.C. Cir. 2001).

       Plaintiffs state that the Government has made 45 separate document productions
totaling 822,473 documents from the AIRR and other document repositories without
organizing or labeling the documents, and without any attempt to designate which
documents are responsive to which requests. Plaintiffs have provided a detailed history
showing their efforts to obtain some level of compliance from the Government in these
cases. Although Plaintiffs’ document requests are comprehensive, the Court does not find
them to be overly broad. Moreover, the Court will not distinguish between documents
produced electronically and those produced in hard copy. In either category, the Court
finds that the Government’s documents are not kept in the ordinary course of business.

       Under the circumstances, the Court finds that the Government has failed to comply
with RCFC 34 and its fiduciary trust obligations. Despite the expense that may be
involved, the Government is directed to produce its responsive documents again, organized
and labeled in a way that complies with Rule 34. Discovery has been extended for three
months to allow the completion of this effort. Dkt. 121, Order, Oct. 15, 2015. The only
exception to this requirement is for documents that are available to the public, which need
not be separately organized and labeled.

                                            3
       B. Rule 30(b)(6) Deposition Issues

       On March 16, 2015, Plaintiffs served on the Government a notice of deposition
under RCFC 30(b)(6), identifying fifteen topics for examination. For six of these topics,
the Government refused to produce a witness. For four other topics, the Government
refused to produce a witness for the time period prior to 2007. For eight topics, the
Government designated a witness, Mr. Paul Yates, Superintendent of the Miami Agency,
but he was unable to provide answers on many of the eight topics for which he had been
designated.2

        Plaintiffs have asked for the imposition of sanctions due to the Government’s failure
to designate a proper witness under RCFC 30(b)(6). In Plaintiffs’ view, the Government
should be prohibited from offering evidence at trial for any subject where its RCFC
30(b)(6) deponent failed to give testimony at the deposition. The Court declines to impose
such a severe sanction where there is no indication that the Government acted with willful
neglect or bad faith. See Zoltek Corp. v. United States, 71 Fed. Cl. 160, 171 (2006)
(“exclusion of evidence is an extreme sanction and should be applied only when lesser
sanctions are inadequate”) (citations omitted). Also, there is no prior discovery order that
has been violated. The better course, in the interest of full development of the facts, is to
allow the Government a second chance to comply with Plaintiffs’ RCFC 30(b)(6)
deposition notice. As with the Court’s reading of Plaintiffs’ document requests, the topics
listed in the deposition notice were comprehensive, but not overly broad. Therefore, the
Government is directed to produce knowledgeable persons who can respond under oath in
a RCFC 30(b)(6) deposition on behalf of the United States.

       C. RCFC 37 Fees and Costs

       As noted above, on October 15, 2015, the Court entered an order granting the
parties’ joint motion to amend the pretrial schedule by adding three months to the
remaining discovery tasks. Under the amended schedule, the parties will have until July
14, 2016 to complete all discovery. During this period, the parties will have opportunities
to cure the discovery shortcomings that have occurred thus far. Accordingly, the Court
will deny Plaintiffs’ claim for recovery of fees and costs without prejudice, subject to
Plaintiffs reasserting the claim if the forthcoming discovery efforts are still unsatisfactory.




2
  Some of the categories overlap, in the sense that the Government refused to produce a witness for the
time period prior to 2007, but did designate Mr. Yates who could not provide answers even for the time
period after 2007.
                                                  4
                                    Conclusion

     Based upon the foregoing, Plaintiffs’ motion for discovery relief is GRANTED IN
PART and DENIED IN PART.

      IT IS SO ORDERED.

                                             s/ Thomas C. Wheeler
                                             THOMAS C. WHEELER
                                             Judge




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