The opinion of the court was delivered by: John E. Simko United States Magistrate Judge
ORDER ON MOTION TO QUASH SUBPOENA (DOC. 197)
Pending is the State's motion to quash the Tribe's notice to take the
deposition of Governor Michael Rounds.*fn1 The State
argues former Governor Rounds*fn2 is a high ranking
government official whose deposition cannot be taken absent
extraordinary circumstances.*fn3 The State also argues
that conversations among the former Governor and staff are protected
from discovery by the deliberative process privilege.*fn4
The Tribe argues Governor Rounds is the only source for the
particular information they need to prove their case and the
deliberative process privilege does not apply.*fn5
Former Governor Rounds has filed an affidavit*fn6 in which he says that he designated Larry Eliason to negotiate class III gaming contracts with South Dakota Indian tribes pursuant to the Indian Gaming Regulatory Act (IGRA). Rob Skjonsberg, Chief of Staff, was the primary person of contact for Larry Eliason. Governor Rounds did not personally attend the negotiating sessions. The State asserts that Governor Rounds possesses no pertinent first hand information and that all of his information comes through Rob Skjonsberg from Larry Eliason. According to the State,*fn7 Governor Rounds does not possess any information that cannot be obtained from either Rob Skjonsberg or Larry Eliason. Furthermore, the State argues that relevant evidence by definition excludes any evidence not part and parcel of the negotiating sessions. The State argues that Governor Rounds does not possess relevant evidence. Furthermore, deliberations and documents that guide or inform the decisions of the State's policy makers are protected by the deliberative process privilege.*fn8
The Tribe argues that Governor Rounds is the ultimate decision maker for the State about the gaming compact.*fn9 According to the Tribe, with little or no explanation Governor Rounds has been unwilling to sign a compact which contains terms acceptable to the Tribe.*fn10 The Tribe argues that as the ultimate decision maker for the State, Governor Rounds is a witness with unique personal knowledge about the State's reasons for refusing to sign a compact. The Tribe proposed a compact which allowed 1500 gaming devices compared to 250 under the most recent compact, but the State without explanation refused to agree.*fn11 The Tribe asserts Governor Rounds was personally involved in reviewing compact proposals and promoting his policy positions during six unsuccessful negotiating sessions. The Tribe suggests that Governor Rounds has written letters to the Tribe and others in which he says he is fully informed of the progress of the negotiating sessions, and that he has seen nothing which alleviates his concerns about the impact on the State's revenue if the Tribe operates more than 250 machines.*fn12 The Tribe asserts that it carries the burden to prove the State has not negotiated in good faith, so it is necessary for the Tribe to learn from Governor Rounds why he will not agree to the Tribe's proposals.*fn13
Indian Gaming Regulatory Act (IGRA).
Some background beyond the discovery rule of the Federal Rules of Civil Procedure is a necessary predicate to the analysis of this dispute. The centerpiece for analysis of this case is IGRA.*fn14 Under IGRA class III gaming can be conducted only if, among other matters, it is conducted within a State which permits such gaming and is conducted in conformance with a Tribal-State compact that is in effect.*fn15 A Tribal-State compact may include provisions relating to seven subjects:
1. Application of criminal and civil laws and regulations that are directly related to and necessary for licensing and regulation of pertinent gaming activities.
2. Allocation of criminal and civil jurisdiction for the enforcement of those laws and regulations.
3. An assessment of gaming activities in such amounts as are necessary to defray the costs of regulating the gaming activities.
4. Taxation of the gaming activities by the Tribe in amounts comparable to amounts assessed by the State for comparable activities.
5. Remedies for breach of contract.
6. Standards for the operation of gaming and maintenance of the gaming facility, including licensing.
7. And other subjects that are directly related to the operation of gaming activities.*fn16
The United States district courts are vested with jurisdiction over lawsuits commenced by an Indian tribe arising from the failure of a State to enter into negotiations with an Indian tribe for a Tribal-State compact or to conduct negotiations in good faith.*fn17 If in the lawsuit the Indian tribe demonstrates that the Tribal-State compact has not been entered into and that the State did not respond to the request to negotiate or that the State did not respond in good faith, then the burden shifts to the State to prove that it has negotiated with the Indian tribe in good faith.*fn18 Despite IGRA, ...