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Rabang v. Kelly

United States District Court, W.D. Washington, Seattle

October 25, 2017

MARGRETTY RABANG, et al., Plaintiffs,
v.
ROBERT KELLY, JR., et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiffs' motion to compel (Dkt. No. 95), Defendants' motion to quash subpoena duces tecum (Dkt. No. 98), motion to strike notices of depositions and for protective order (Dkt. No. 125), and Objector Nooksack Indian Tribe of Washington's motion to quash (Dkt. No. 124). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby ORDERS a stay of proceedings for the reasons explained herein.

         I. BACKGROUND

         This case arises out of the disenrollment of hundreds of Nooksack tribal members, and the subsequent Department of the Interior (DOI) and Bureau of Indian Affairs (BIA) decisions, also at issue in a related case before this Court.[1] Plaintiffs in this matter are “purportedly disenrolled” members of the Nooksack Indian Tribe.[2] (Dkt. No. 64 at 4.) Defendants are members of the Nooksack tribal leadership, tribal court, and other tribal agencies. (Id. at 4-6.) The Court has provided a detailed factual background of this case in previous orders. (See Dkt. Nos. 62 at 1-6; 63 at 1-2.) The following is a procedural history of the case relevant to the motions pending before the Court.

         1. Plaintiffs' Motion to Compel

         On August 24, 2017, Plaintiffs filed a motion to compel in which they ask the Court to order: (1) Defendant Dodge to produce all responsive documents consistent with Federal Rule of Civil Procedure 34; (2) Defendants Armstrong, Canete, and Kelly Jr. to respond to discovery requests; and (3) Five non-party Nooksack Tribal employees to comply with the Plaintiffs' subpoena duces tecum. (Dkt. No. 95 at 2.) Dodge resists discovery on various grounds. (See generally Dkt. No. 108.) Armstrong, Canete, and Kelly Jr. argue that they do not have to respond to the discovery requests because of their pending interlocutory appeal. (Dkt. No. 102 at 4-5.)

         2. Defendants' Motion to Quash Subpoena Duces Tecum

         On August 24, 2017, the Kelly Defendants[3] filed a motion to quash a subpoena duces tecum served by Plaintiffs on Defendants' counsel, Schwabe, Williamson & Wyatt, P.C. (“Schwabe”). (Dkt. No. 99 at 7-10.) Plaintiffs sought documents purportedly related to Dodge's involvement in the Kelly Defendants' alleged scheme to defraud Plaintiffs. (Dkt. No. 104 at 2- 3.) The Kelly Defendants argue that the subpoena sought information that was attorney-client privileged, work product, and otherwise confidential. (Dkt. No. 98 at 3-4.)

         3. Defendants' Motion to Strike Depositions and for Protective Order

         On October 10, 2017, the Kelly Defendants filed a motion to strike notices of deposition for Defendants Canete, Armstrong, and Kelly. (Dkt. No. 125 at 4-6.) They also sought a protective order precluding discovery against the Kelly Defendants while their interlocutory appeal is pending. (Id.) Plaintiffs argue that they are entitled to discovery from the Kelly Defendants pertaining to issues raised in Defendant Dodge's pending motion for summary judgment. (Dkt. No. 127 at 2.)

         4. Objector Nooksack Tribe's Motion to Quash

         On October 17, 2017, the Nooksack Indian Tribe, appearing as a non-party objector, filed a motion to quash subpoeanas delivered by Plaintiffs on three tribal employees seeking depositions and tribal documents. (Dkt. No. 124 at 2.) The Tribe asserts that the employees are insulated from the discovery requests based on the doctrine of tribal sovereign immunity. (Id.) Plaintiffs argue they are entitled to this discovery under the Federal Rules. (Dkt. No. 127 at 4-5.)

         5. Nooksack Tribe's Entry into a Memorandum of Agreement with DOI

         On August 28, 2017, Defendant Kelly, in his capacity as Chairman of the Nooksack Tribal Council, entered into a Memorandum of Agreement (MOA) with Michael Black, Acting Assistant Secretary - Indian Affairs, on behalf of DOI. (Dkt. No. 117-1 at 8-12.) The MOA's purpose is to establish a process under which DOI recognizes the Nooksack Tribal Council as the governing body of the Nooksack Indian Tribe. (Id. at 8.) Under the ...


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