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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ELOUISE PEPION COBELL, et al.,) ) No. 1:96CV01285 Plaintiffs, ) (Judge Robertson) v. ) ) DIRK KEMPTHORNE, Secretary of ) the Interior, et al., ) ) Defendants. ) ) DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE ALL EXHIBITS AND PROPOSED TESTIMONY IDENTIFIED IN PLAINTIFFS’ PRETRIAL STATEMENT THAT ARE OUTSIDE THE SCOPE OF MATTERS TO BE CONSIDERED AT THE OCTOBER 10, 2007 TRIAL Pursuant to Rule 104(a) of the Federal Rules of Evidence, Defendants respectfully move this Court for an order in limine excluding all exhibits and proposed testimony identified in Plaintiffs’ Pretrial Statement that are related to matters outside the scope of the October 10, 2007 trial.1 Plaintiffs have listed 4435 exhibits, the majority of which involve disparate and irrelevant subjects such as IT security, asset management activities and other topics far afield from accounting issues. In their Pretrial Statement, Plaintiffs also identify 53 proposed witnesses (while reserving the right to call an untold number of unidentified witnesses from “corporate entities”), and designate the testimony from prior proceedings of 53 witnesses, most of which would be offered on the same irrelevant topics. Defendants seek an order in limine to exclude such proposed irrelevant evidence for the reasons set forth below. 1/ Plaintiffs’ counsel has stated that Plaintiffs will oppose this motion. INTRODUCTION Pursuant to Rule 16 of the Federal Rules of Civil Procedure, this Court is authorized to conduct pretrial conferences “for such purposes as . discouraging wasteful pretrial activities [and] improving the quality of the trial through more thorough preparation.” Fed. R. Civ. P. 16(a)(3)-(4). This Court has held several conferences with the parties, most recently on July 9, 2007. As a result of that conference, the Court entered its Scheduling Order, directing that “Pretrial statements compliant with [Local Civil Rule] 16.5(b)(1) are due September 17.” Scheduling Order ¶ 5 (July 11, 2007) (Dkt. No. 3359). Plaintiffs filed their Pretrial Statement on September 17, 2007 (Dkt. No. 3398), and on its face, their Pretrial Statement promotes “wasteful pretrial activities” and reflects anything but “thorough preparation” for the upcoming hearing, in disregard of Rule 16, pursuant to which Local Civil Rule 16.5 was promulgated. Among the elements of Plaintiffs’ submission are the following: • Plaintiffs’ Witness List identifies no less than 53 potential witnesses (not including witnesses from “corporate entities”) • Plaintiffs’ Exhibit List identifies 4,435 potential exhibits2 • Plaintiffs designate for introduction into the record the prior testimony of no less than 53 separate witnesses, frequently listing entire transcripts for witnesses whose testimony required multiple days and without regard to whether the witness has been listed by Plaintiffs as a potential witness at the upcoming hearing. Thus, contrary to the purpose for Rule 16 conferences and the pretrial submission standards underlying Local Rule 16.5, Plaintiffs’ pretrial submission reflects minimal planning. 2/ This number includes documents listed more than once on Plaintiffs’ list of potential exhibits. 2 Instead, it is little more than a “data dump” of information, apparently accumulated by Plaintiffs’ counsel over the past eleven-plus years of this litigation. See generally Advanced Media, L.L.C. v. Charter Communications, Inc., 2006 WL 3422669, *11 (N.D. Ga. Nov. 27, 2006) (party asserted that “although the relevant information is likely contained somewhere [within the data dump], there is so much irrelevant information the data is of little use”).3 For example, the first exhibit appearing on Plaintiffs’ list of proposed exhibits that they will “use at trial,” is not even a document, but rather a dynamic website which, when accessed, contains thousands of unauthenticated documents on topics with little or no relation to accounting matters. See Plaintiffs’ Pretrial Statement, Exhibit 1, at 1 (PPX 2: CHARLES J. KAPPLER, Indian Affairs: Laws and Treaties VOLS. I, & III - V http://digital.library.okstate.edu/kappler/”). It is difficult to understand how Plaintiffs could reasonably expect to use this website as an exhibit at trial. The manifest problems created by Plaintiffs’ failure to submit a thoughtful and constructive pretrial statement – as well as the propriety of redress through a motion in limine – may be well summarized as follows: The question remains “how does a judge try a case most effectively and fairly to all parties involved?” The answer lies in thorough and comprehensive pre-trial procedures that resolve in advance, all of the problems that may be reasonably anticipated or expected to arise at the trial. This is the purpose of Motions in Limine and Fed.R.Civ.P. 16. By promptly resolving such 3/ Plaintiffs’ submission is all the more indefensible in the context of an action brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(1), in which in-court proceedings are rare and limited. See, e.g., American Coke & Coal Chemicals Institute v. EPA, 452 F.3d 930, 945 (D.C. Cir. 2006) (“It is well established that ‘the focal point for judicial review’ under the 5 U.S.C. § 706(2)(A) ‘should be the administrative record already in existence, not some new record made initially in the reviewing court.’”) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). 3 problems, the trial court will be securing the highest quality of justice, in the least amount of time, and at the lowest possible cost to the parties. Koller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1067 (D.C. Cir. 1984) (concurring opinion), vacated on other grounds, 472 U.S. 424 (1985). Rather than facilitating “the highest quality of justice, in the least amount of time, and at the lowest possible cost to the parties,” Koller, 737 F.2d at 1067, Plaintiffs’ pretrial submission provides this Court with minimal means to plan for the upcoming hearing. Will the Plaintiffs truly attempt to present the testimony of scores of witnesses, seek to introduce thousands of exhibits, and encumber the record with dozens of testimony transcripts for prior witnesses? Their Pretrial Statement leaves the Court unable to determine whether this trial will require weeks, months, or even a year. Although the Court scheduled the trial to address discrete questions about the 2007 Plan and “throughput” issues, see Memorandum Order at 3 (Apr. 20, 2007) (Dkt. No. 3312), these issues were virtually ignored by Plaintiffs in their pretrial submission. Where, as here, a party has completely abdicated its responsibility to provide this Court with a meaningful, reasoned roadmap for trial, the Court is left with only one sound option: the entry of pretrial orders in limine to prevent that party from wasting the limited and valuable resources of this Court and focus the presentation of evidence on those matters which are legally significant. I. EXHIBITS AND TESTIMONY RELATED TO PLAINTIFFS’ “IMPOSSIBILITY” THEORY SHOULD BE EXCLUDED Notwithstanding that this remains an action to compel an accounting, the central tenet of Plaintiffs’ case is that an accounting is “impossible.” See Plaintiffs’ Pretrial Statement at 4 10.4 Plaintiffs apparently will seek to establish this principle by introducing testimony and exhibits that will show “that trust documents critical to the rendering of an accurate and complete accounting have been destroyed, and the majority of extant documents, including electronic records, are without integrity and are unreliable.” Id.5 Plaintiffs’ impossibility evidence is not part of the October 10 trial because “impossibility” is outside the scope of issues the Court has indicated that the trial will cover. Quoting from the Court’s comments at the June 18, 2007 hearing, Plaintiffs recently described the limited scope of the October 10 trial as follows: On June 18, 2007, this Court set forth the matters to be covered (and, the questions to be answered) in the October Trial. What this October trial is all about is going to be -- let me see if I can block this out for you, and I'll try to write this out for you. First, it's going to be about what you're doing and what you're not doing. All right? I mean, you're doing what you're doing; they think you should be doing a lot more. It's going to be about both of those things. Second, what would it cost to do the things that they say that you should be doing and you're not doing? Third, taking into account the cost, because that, I think, I'm required to do by the Court of Appeals, is what you're doing adequate? Is it an adequate accounting? And fourth -- and this is what you don't want to hear, but I think Mr. Gingold is entitled to at least a record on this point, fourth, what does it all add up to? Throughput versus what you can prove, what are the big numbers? 4/ Without citation, Plaintiffs allege that their impossibility claim is a “fact admitted repeatedly by defendants and their counsel in this litigation.” Plaintiffs’ Pretrial Statement at 10. Defendants dispute this unsupported claim. 5/ Plaintiffs are foreclosed from arguing impossibility at the upcoming hearing – or at any point in this case – unless they amend their Complaint. It does not allege that the accounting is impossible, seeks no alternative relief in the form of a declaration that the accounting is impossible, and alleges no jurisdictional basis to afford such relief. Absent an amendment to the Complaint, all testimony and exhibits intended to demonstrate impossibility should be excluded. 5 June 18, 2007 Hearing Tr. 76:20-77:10. In short form: What is the nature and scope of the 2007 Plan and are the Secretary’s decisions reasonable considering the cost involved? Plaintiffs’ Opposition to Defendants’ Motion for Leave to Disclose Certain Potential Hearing Exhibits After the Scheduled Exchange Date at 3 [Dkt.

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