Free Motion to Compel - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Robert H. Hodges)

DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES Plaintiffs in this action are the owners of numerous moderate- and low-income housing projects. Plaintiffs allege that the Emergency Low-Income Housing Preservation Act of 1987 ("ELIHPA") and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 ("LIHPRHA") (collectively, the "Preservation Statutes"), as applied to their property by Department of Housing and Urban Development ("HUD"), effected a regulatory taking. In August 2000, this Court dismissed plaintiffs' as-applied, regulatory taking claims as unripe. On appeal, the plaintiffs argued that this Court did not give them a fair opportunity to demonstrate that their claims were ripe. They contended that, if given the opportunity, they would offer "individualized evidence" establishing ripeness on a project-by-project basis. The Federal Circuit reversed and remanded with instructions to conduct discovery on the issue of ripeness. Upon remand, in July 2006, the United States served interrogatories seeking information about plaintiffs' contention that their as-applied taking claims are ripe. The United States agreed to plaintiffs' requests for three separate extensions of time. Yet, in January 2007, six months after having received the United States' interrogatories, and nearly two years after assuring the Federal Circuit that they could offer specific evidence that their claims are ripe, plaintiffs refused

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 2 of 10

to answer interrogatories seeking information central to the question of ripeness. Accordingly, pursuant to Rule 37 of the Rules of the United States Court of Federal Claims ("RCFC"), the United States respectfully requests that the Court enter an order compelling plaintiffs to answer interrogatories five, six and seven by March 21, 2007. PROCEDURAL BACKGROUND On July 21, 2000, the plaintiffs responded to an order of this Court directing them to state whether they were distinguishable from a recent ripeness decision in the Cienega Gardens litigation. The plaintiffs proceeded as one large group. Their filing (1) submitted no evidence of futility with respect to the vast majority of plaintiffs, (2) included no data on local rental markets, and (3) admitted that they were factually indistinguishable from the plaintiffs in Greenbrier v. United States, 193 F.3d 1348 (Fed. Cir. 1999) ­ a decision that affirmed the dismissal of taking claims of 249 owners of low-income housing on ripeness grounds. See Pls.' Response to Order (July 21, 2000). Plaintiffs further stated that the Federal Circuit had erred in the Greenbrier case and "acknowledged that dismissal was appropriate so that those Plaintiffs who so wish may appeal to the Federal Circuit to reconsider its decision in Greenbrier." Id. This Court dismissed the case in August 2000 based upon the plaintiffs' filing. Order of Judge Robert H. Hodges (Aug. 16, 2000). On appeal, after a stay of nearly five years, the plaintiffs argued to the Federal Circuit that this Court had wrongly dismissed their claims. The plaintiffs asserted that they had "not had an opportunity to show that, in fact, they would not have been allowed to prepay their mortgages if they had requested to do so." Pls.' Br. at 30. They urged the Federal Circuit to remand the case so that they could establish "that exhaustion [of the administrative process under the

2

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 3 of 10

Preservation Statutes] was futile in their cases and that their claims therefore are in fact ripe for adjudication. Pls.' Br. at 30-31; see also Pls.' Reply at 12 (asserting that they were simply seeking "the opportunity to present evidence of futility"). The Federal Circuit reviewed the operative complaint, noted that it contained certain allegations of administrative delays by HUD, and concluded that the plaintiffs' had "not had the opportunity to develop facts relative to futility and ripeness." Anaheim Gardens v. United States, 444 F.3d 1309, 1313-14, (Fed. Cir. 2006). Accordingly, the Federal Circuit reversed and remanded this action "for the development of facts on whether [plaintiffs'] takings claims are ripe." Id. at 1317. Upon remand, the Court established a five-month period for discovery on ripeness issues. Order of Judge Robert H. Hodges (August 14, 2006). The United States promptly served written discovery seeking, among other things, project-by-project information about ripeness. The plaintiffs' response to this discovery was originally due August 10, 2006. The plaintiffs requested, and the United States agreed to, three separate extensions to enable plaintiffs to retrieve documents and obtain information to respond to the United States' discovery requests.1 As a result, plaintiffs' did not serve a written response to the United States' interrogatories until January 12, 2007. With respect to several key interrogatories on ripeness, the plaintiffs asserted objections and refused to provide a substantive response. See Pl.'s Responses to Def.'s First Set of Interrogatories at 5-6 (Jan. 12, 2007) (response to interrogatories 5, 6 and 7) (attached as

The parties also agreed to request an enlargement of the period for ripeness discovery. The Court granted the parties' request and, accordingly, the period for discovery on ripeness issues currently ends May 31, 2007. Order of Judge Robert H. Hodges (Jan. 2, 2007). 3

1

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 4 of 10

Exhibit A). On February 5, 2007, undersigned counsel explained that the asserted objections were without merit and insisted that substantive answers be provided. See Letter from David A. Harrington to Harry J. Kelly at 3-4 (Feb. 5, 2007) (attached as Exhibit B). In response, on February 14, 2007, plaintiffs' counsel asserted that plaintiffs' "response is adequate." See Letter from Harry Kelly to David Harrington at 9-11 (Feb. 14, 2007) (attached as Exhibit C). On February 21, 2007, undersigned counsel contacted plaintiffs' counsel to, among other things, attempt to resolve the impasse regarding interrogatories 5, 6 and 7. See Letter from David A. Harrington to Harry J. Kelly at 1 (Feb. 22, 2007) (attached as Exhibit D). This attempt was unsuccessful. Ex. D at 3. Accordingly, counsel for the United States certifies that defendant has conferred in good faith with plaintiffs in an effort to secure proper interrogatory answers without Court action. See RCFC 37(a)(2)(A). ARGUMENT I. Plaintiffs' Objections To The Government's Interrogatories Are Meritless A. Plaintiffs Should Be Compelled To Give Answers To Interrogatories 5 and 6

Interrogatories 5 and 6 ask each plaintiff to state the date upon which HUD applied the Preservation Statutes to the plaintiff's property such that its as-applied taking clam ripened. Interrogatory 5, which sought information about application of ELIHPA, states as follows: For each Subject Property, state the date upon which you contend that HUD reached a final decision regarding the application of ELIHPA to the Subject Property, and state all facts upon which you base your contention. See Ex. A, at 5. On January 12, 2007, plaintiffs provided the following response:

4

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 5 of 10

Response: Plaintiffs object to this interrogatory on several grounds. First, the meaning of the term "final decision" is vague and ambiguous. . . . Further, the interrogatory is overly broad and unduly burdensome. Ex. A, at 5. The United States posed an identical interrogatory with respect to HUD's application of LIHPRHA to each Subject Property, and the plaintiffs' responded with the very same objections. Id. at 5-6. In the context of discovery on ripeness, the United States' reference to HUD's "final decision" applying the Preservation Statutes is neither vague nor ambiguous. However, upon receiving plaintiffs response, the United States wrote plaintiffs' counsel: An "as-applied" taking claim does not ripen "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Palazollo v. Rhode Island, 533 U.S. 606, 618 (2001) (emphasis added). Interrogatories 5 and 6 ask the plaintiffs to identify the date upon which they contend that HUD reached a "final decision" regarding application of the Preservation Statutes to their property. Ex. B at 3 (stating also that "[w]e have requested that the plaintiffs identify the date upon which they contend that HUD rendered the `final decision' that ripened their as-applied taking claim"). Plaintiffs admit that this letter eliminated the supposed ambiguity in interrogatories 5 and 6, but nevertheless refuse to provide an answer. See Ex. C at 9. Plaintiffs' alternative objection ­ that providing the United States basic information about their contentions on ripeness is "unduly burdensome" ­ borders on frivolous. Indeed, plaintiffs obtained a reversal of this Court's prior dismissal by assuring the Federal Circuit that they "can produce . . . individualized evidence" establishing that their claims are ripe. Pls.' Reply at 12

5

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 6 of 10

(stating that "they simply have not had the opportunity to do so"). In sum, the objections asserted by plaintiffs in response to Interrogatories 5 and 6 are utterly meritless. In a recent discussion, plaintiffs' counsel suggested that plaintiffs should not have to answer the United States' interrogatory answers until the United States has responded to the plaintiffs' own requests for production.2 This Court's rules on discovery are clear ­ a party has 30 days from the date of service to respond to interrogatories. RCFC 33(b)(3). The United States served its interrogatories in July 2006. After receiving three separate extensions from the United States, the plaintiffs answers were due on January 12, 2007. Plaintiffs attempt to further delay providing answers is completely unjustified.3 B. Plaintiffs Should Be Compelled To Give An Answer To Interrogatory 7

Interrogatory 7, which inquires whether the plaintiffs contend that applying to prepay pursuant to the Preservation Statutes was futile, states as follows: For each Subject Property, if you contend that applying to prepay pursuant to the Preservation Statutes was futile, state all facts upon which you base your contention. See Ex. A, at 6. On January 12, 2007, plaintiffs provided the following response:

Plaintiffs' requests for production were served over three months after the interrogatories at issue. The United States has begun producing documents to plaintiffs, but does not anticipate completing the production of documents until mid-April 2007. Plaintiffs' counsel agreed to this schedule. It is unclear how documents produced in discovery could affect plaintiffs' contentions about the dates upon which their respective claims ripened. Indeed, counsel presumably investigated whether plaintiffs possessed ripe claims before filing suit in this Court. In any event, if warranted, plaintiffs can serve supplemental interrogatory answers. See RCFC 26(e). 6
3

2

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 7 of 10

Response: Plaintiffs object to this interrogatory on the ground that it calls for a legal conclusion and opinion. Further, Plaintiffs object to this interrogatory on the ground that it is vague, overly broad and unduly burdensome. Ex. A, at 6. Plaintiff's objection that Interrogatory 7 calls for a legal conclusion is contrary to the language of the interrogatory itself, which asks the plaintiff's to "state all facts" upon which any contention of futility is based. Plaintiffs' conclusory statement that the interrogatory is vague, overly broad and unduly burdensome is equally misplaced. The plaintiffs offer no basis for these boilerplate objections. Moreover, interrogatory 7 is clear, concise and seeks the very sort of information that the plaintiffs told the Federal Circuit would be forthcoming in any remand. Pls.' Br. at 30 (seeking remand "for fact-finding concerning the futility of requesting prepayment") (section title); Pls.' Reply at 12 (stating that the plaintiffs "seek . . . the opportunity to present evidence of futility"). The plaintiffs, however, disclosed more information to this Court prior to the appeal and remand, than in their response to interrogatory 7. In their July 2000 filing, plaintiffs included allegations concerning three of the subject properties, most notably that an unnamed HUD official told one property owner not to apply to prepay, and indicated that they were aware of additional information on futility. See Pls.' Response to Order (July 21, 2000). Not even the information known to the plaintiffs (and to plaintiffs' counsel) over six years ago was provided in response to interrogatory 7. If the plaintiffs did not apply to prepay their Government-insured mortgages because they believed that seeking prepayment under the Preservation Statutes was futile, the United States is

7

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 8 of 10

entitled to that information.4 Thus, for each project at issue, the plaintiffs should be compelled to promptly answer interrogatory 7 to provide any evidence that they declined to seek HUD's permission to prepay their respective Government-insured mortgages because they believed applying to prepay under the Preservation Statutes was futile. CONCLUSION The plaintiffs have long delayed providing answers to interrogatories central to the question of ripeness ­ refusing to disclose the very facts that the plaintiffs assured the Court of Appeals would be presented on remand. Because the period for discovery on ripeness has been enlarged once and is scheduled to close on May 31, 2007, and because the United States requires the information sought by these interrogatories to both defend this action and to conduct meaningful depositions, the United States respectfully requests that the Court compel plaintiffs to provide full and complete interrogatory answers on or before March 21, 2007. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director

4

8

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 9 of 10

s/ David A. Harrington DAVID A. HARRINGTON Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0465 February 26, 2007 Attorneys for Defendant

9

Case 1:93-cv-00655-MMS

Document 143

Filed 02/26/2007

Page 10 of 10

CERTIFICATE OF FILING I hereby certify that on the 26th day of February 2007, a copy of "DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. Additionally, a copy of this filing has been hand delivered to plaintiffs' counsel, Harry J. Kelly.

s/ David A. Harrington

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 1 of 17

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et alo, Plaintiffs,
No. 93-655C Judge Robert H. Hodges, Jr.

THE UNITED STATES, Defendant.

ALGONQUIN HEIGHTS, et al., Plaintiffs, No. 97-582C Judge Robert H. Hodges, Jr. THE UNITED STATES, Defendant.
PLAINTIFFS' RESPONSES TO DEFENDANT'S FIRST SET OF INTERROGATORIES Pursuant to Rules 26 and 33 of the Rules of the United States Court of Federal Claims, Plaintiffs Anaheim Gardens, et al. and Algonquin Heights, et al. ("Plaintiffs"), by their attorneys Nixon Peabody LLP, make the following general and specific objections to the "Defendant's First Set of Interrogatories" (collectively, "Interrogatories" and individually, each an "Interrogatory") propounded by Defendant, The~United States. GENERAL OBJECTIONS 1. Plaintiffs object to the Interrogatories that attempt to elicit documents or

information that are or may be protected by the attorney-client privilege, the work product doctrine, and any other legally cognizable privilege or protection from disclosure.

10224249.2

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 2 of 17

Inadvertent disclosure of any privileged or protected information shall not be a waiver of any claim or privilege or protection. 2. Plaintiffs object to each Interrogatory that is vague, ambiguous, irrelevant to

the claim of ripeness, overbroad, calculated to cause undue burden and expense, and/or that seeks information outside the scope of permissible discovery. 3. Plaintiffs object to each Interrogatory that seeks information not within its

possession, custody, or control. 4. Plaintiffs object to each Interrogatory that seeks documents or information

within Defendant's knowledge and possession or to which Defendant has equal access. Plaintiffs object to each Interrogatory that contains terms or phrases that are undefined. 6. Plaintiffs object to each Interrogatory that is unlimited in time or otherwise

not limited to a reasonable time frame relevant to this litigation. 7. Plaintiffs object to each Interrogatory to the extent that discovery is ongoing

in this matter, and it may not yet be in possession of all information necessary to respond in full to the Interrogatory. ]n this event, Plaintiff will supplement its answer at the appropriate time. 8. Plaintiffs object to each Interrogatory including the instructions and

definitions thereto that impose discovery obligations that exceed the Rules of the United States Court of Federal Claims. The foregoing Genera] Objections are incorporated by reference within each of its answers and all answers are made subject to, and without waiving, those General Objections, whether or not specifically reiterated in the answers themselves.

2

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 3 of 17

INTERROGATORY 1: Identify every owner, including general partners and limited partners, current and former, who invested in each of the Subject Properties. For each owner indicate their ownership interest, the period of time for which that ownership interest was held, and any other Subject Property in which that owner invested. Response: Plaintiffs object to this interrogatory on the ground that it is overly broad and unduly burdensome in that it requests information from 1969 through to the present. Plaintiffs further object to this interrogatory, because it does not seek information relevant to the ripeness issue, and because the information requested constitutes confidential business information of the owners of the Subject Properties. INTERROGATORY 2: For each Subject Property, describe in detail all actions taken pursuant to the ELIHPA including, but not limited to, whether you submitted a notice of intent to HUD, the date upon which any notice of intent was submitted to HUD, whether you submitted a plan of action to HUD, the date upon which any plan of action was submitted to HUD, the date upon which any submitted plan of action was approved or rejected by HUD, and the date upon which funding for any approved plan of action was provided by HUD. RespQnse: Plaintiffs object to this interrogatory to the extent that it asks for a detailed description of "all actions." This portion of the interrogatory is ambiguous, vague, overly broad and unduly burdensome. Plaintiff also objects with respect to inquiries concerning approval or rejection of plans of actions: HUD routinely approved, conditionally approved, rejected and/or rejected and

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 4 of 17

later approved plans of action. Without waiving these objections, Plaintiffs' further respond as reflected on the charts attached hereto as Exhibit A. INTERROGATORY 3: For each Subject Property, describe in detail all actions taken pursuant to the LIHPRHA including, but not limited to, whether you submitted a notice of intent to HUD, the date upon which any notice of intent was submitted to HUD, whether you submitted a plan of action to HUD, the date upon which any plan of action was submitted to HUD, the date upon which any submitted plan of action was approved or rejected by HUD, and the date upon which funding for any approved plan of action was provided by HUD. Response: Plaintiffs object to this interrogatory to the extent that it asks for a detailed description of "all actions." This portion of the interrogatory is ambiguous, vague, overly broad and unduly burdensome. Plaintiff also objects with respect to inquiries concerning approval or rejection of plans of actions: HUD routinely approvedl conditionally approved, rejected and/or rejected and later approved plans .of action. Without waiving these objections, Plaintiffs' further respond as reflected on the charts attached hereto as Exhibit A. INTERROGATORY 4: For each Subject Property, describe in detail all communications between you and HUD relating to the possible prepayment of the property's Government-insured mortgage. Response: Plaintiffs object to this interrogatory as ambiguous, vague, overly broad and unduly burdensome. This request potentially encompasses 37 years of "all communications." To the extent the interrogatory seeks detailed information about oral communications, given the breadth

4

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 5 of 17

and vagueness of the request, it is more appropriately addressed in a deposition, and is not a proper subject for an interrogatory. To the extent there have been such communications, and those communications are written communications in the possession of Plaintiffs, they have previously been provided as part of the Plaintiffs' rolling document production. INTERROGATORY 5: For each Subject Property, state the date upon which you contend that HUD reached a final decision regarding the application of ELIHPA to the Subject Property and state all facts upon which you base your contention. Response: Plaintiffs object to this interrogatory on several grounds. First, the meaning of the term "final decision" is vague and ambiguous. There were multiple points of decision in the course of the process and because of modifications, and supplements made throughout the process by both the Plaintiffs and the Government, we cannot respond as to what the "final decision" date was in the process. To the extent Plaintiffs possess information about the date of final approval of the plans of action for the subject properties, that information is included in the charts attached as Exhibit A. Additionally, this information is information that should reside in the Government's possession. Accordingly, to the extent that information is provided to Plaintiffs in the Government's document production, Plaintiffs will supplement the response to this interrogatory. Further, the interrogatory is overly broad and unduly burdensome. INTERROGATORY 6: For each Subject Property, state the date upon which you contend that HUD reached a final decision regarding the application of LIHPPd-IA to the Subject Property and state all facts upon which you base your contention.

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 6 of 17

Response: Plaintiffs object to this interrogatory on several grounds. First, the meaning of the term "final decision" is vague and ambiguous. There were multiple points of decision in the course of the process and because of modifications and supplements made throughout the process by both the Plaintiffs and the Government, we cannot respond as to what the "final decision" date was in the process. To the extent Plaintiffs possess information about the date of final approval of the plans of action for the subject properties, that information is included in the charts attached as Exhibit A. Additionally, this information is information that should reside in the Government's possession. Accordingly, to the extent that information is provided to Plaintiffs in the Government's document production, Plaintiffs will supplement the response to this interrogatory. Further, the interrogatory is overly broad and unduly burdensome. INTERROGATORY 7: For each Subject Property, if you contend that applying to prepay pursuant to the Preservation Statutes was futile, state all facts upon-which you base your contention. Response: Plaintiffs object to this interrogatory on the ground that it calls for a legal conclusion and opinion. Further, Plaintiffs object to this interrogatory on the ground that it is vague, overly broad and unduly burdensome. INTERROGATORY 8: For each request for admission to which you responded with anything other than an unqualified admission, describe in detail the basis for your answer.

6

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 7 of 17

Response: Plaintiffs object to this interrogatory on the ground that it is overly broad and burdensome because it requires a detailed explanation of unqualified denials; To the extent an admission was denied, the basic factual information supporting that denial is included in the charts attached as Exhibit A.

As to Objections Dated: January I__%, 2007 Respectfully submitted:

401 Ninth Street, N.W., Suite 900 Washington, D.C. 20004 (202) 585-8000 Counsel for the Plaintiffs

7

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 8 of 17

EXHIBIT A

100 Centre Street 1550 Beacon Street Algonquin Heights

Yes Yes Yes

12/28/90 12/00/90 12/00/90 and June 1992

No No Yes

N/A N/A
10/22/92

N/A

N/A
Approved in HUD letter dated 9/28/94, amended by subsequent undated HUD letter

N/A N/A
Unknown at this time

a, naheim Gardens Beaumont/Thetford III

No Yes

N/A
12/00/90 and 6/5/92 12/27/90 and 6/5/92 N/A N/A N/A

N/A
Yes

N/A
12/22/93

N/A
Rejected in HUD letter dated 12/18/94

N/A Unknown at this time As of 11/1/94 N/A N/A N/A N/A N/A N/A Unknown at this time Unknown at this time Unknown at this time N/A
N/A

Brandy Hill Brookside Manor Buckman Gardens Calico Court (d/b/a Crab Point)/Thetford IV Cedar Gardens Chauncy House Cherry Branch (Kimberly Gardens) Chowan CourffThefford IV
Coleridge Road/Thetford III

Yes

Yes

12/8/93 N/A N/A N/A

No

No
No

N/A N/A N/A N/A N/A N/A Unknown at this time
Yes

Approved in HUD letter dated 9/27/94 N/A N/A N/A N/A N/A N/A
Unknown at this time

No No
No

N/A N/A
N/A

N/A
N/A N/A
Unknown at this time

Columbus Court/Thetford IV Countrytowne Apartments Creekside Terrace Cromwell Court Dolly Ann Apts. Emory Grove (Willow Creek) First Landmark

Unknown at Unknown this time at this time Yes 12/00/90 and 6/5/92 Unknown at Unknown at this this time time N/A No
No

7/7/94
Unknown at this time

Unknown at this time

Unknown at this time

Unknown at this time
N/A
N/A Approved in HUD letter dated 9/27/94 N/A

N/A
N/A
Yes

N/A
N/A

N/A

Yes

12/27/90 and 6/2/92 N/A 12/21/90 N/A

11/12/92 N/A N/A
N/A

As of 11/1/94 N/A N/A N/A

No Yes

N/A
No

No

N/A

N/A N/A

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 9 of 17

-2-

Florin Meadows I

Yes ~

7/12/89 and 5/18/92

Yes

9/1/89 and 7/22/94

Florin Meadows

Yes

5/15/90 and 5/18/92

Yes

Foothill Forest Glen Forest Glen II Fort Heath Franklin Court/Thetford IV Garrison Forest Olenreed/Glenarden L.P. Glenarder~Glenreed L.P. Glendale Court/Thetford IV Glenview Gardens Halawa View Hardee Street/Thetford lll Henry Street/Thetford III Holiday Town/Theiford III Holiday Town lI/Thetford W Holloway Court/Thefford III Icem~relee Street/Thetford Ill Indian Head Manor Jefferson Court!Thetford IV Jewel Lake Villa ]

No No No Yes
No

N/A N/A N/A 12/10/90 N/A N/A 2/00/90 12/00/90 2/00/90 N/A N/A 12/00/90 & 6/5/92 12/00/90 and 6/5/92 12/00/90 12/00/90 2/00/90

N/A N/A N/A
Yes

No Yes Yes Yes No No
Yes ' Yes

N/A N/A
No No No

Yes Yes
Yes Yes

N/A N/A Unknown at this time Unknown at this time Unknown at this time Unknown at this time Unknown at this time

Yes Yes No

12/00/90 No and 6/5/92 2/28190 No 2/00/90 No NIA N/A

1989 POA Rejected in HUD letter dated 7/I 6/91 and 1994 POA Approved in HUD letter dated 9/27/94 5/!5/90 and 1990 POA 7/22/94 Rejected in HUD letter dated 7/16/91 and 1994 Approved in HUD letter dated 9/27/94 N/A N/A N/A N/A N/A 1/16/95 Unknown at this time N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A Unknown at Unknown at this time this time Unknown at Unknown at this time this time Unknown at Unknown at this time this time Unknown at Unknown at this time this time Unknown at Unknown at this time this time N/A N/A N/A
N/A

Unknown at this time

Unknown at this time

N/A N/A N/A Unknown at this time N/A N/A N/A

N/A
N/A N/A

N/A
Unknown at this time

Unknown at this time Unknown at this time Unknown at this time
Unknown at this time

N/A N/A
N/A

N/A

N/A N/A N/A

N/A

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 10 of 17

-3-

Jewel Lake Villa II
Jodani

Johnson Court/Thefford III Kings Grant

No No Yes Yes

N/A N/A
12/00/90 6/5/92

N/A

N/A
No Yes

N/A N/A N/A
11/12/92

N/A

N/A

N/A N/A
Approved in HUD letter dated 12/30/94 N/A

N/A N/A
As of 4/1/95

Leader House
Long Drive I/Thetford IV

Market North I/Thetford IV Market North II/Thetford IV Metro West Millbank Court/Thetford II1

No No No No No Yes

N/A

N/A N/A
N/A N/A
12/00/90 and 6/5/92

N/A N/A
N/A
N/A

N/A
N/A N/A

N/A
N/A

N/A N/A
N/A

N/A
Yes

Mi'ilwood TownhomesLMid.. City Milwood Apts/Biafora Napa Park New Amsterdam Oakwood Ave/Thefford IV Oakwood Ave II/Thetford IV Ontario Townhouses Palomar
Parthenia Manor

No No Yes No Yes

N/A N/A
12/29/90

N/A
No

N/A 12/00/90 Unknown at and 6/5/92 this time

N/A N/A N/A Unknown at Denied Unknown at this time Preliminary this time Approval in HUD letter dated 9/24/93; Preliminary Approval subsequently granted, but the date is unknown at this time. N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A Unknown at Unknown at Unknown at this time this time this time N/A Unknown at Unknown at this time this time N/A
N/A

Peachtree Court/Thetford IV
Person Court/Thetford Ill

Pine Crest

Unknown at Unknown Unknown at this time at this this time time No N/A N/A No N/A N/A Yes Unknown No at this time Unknown at Unknown Unknown at this time at this this time time Yes 12/00/90 Unknown at this time No N/A N/A

Unknown at this time N/A N/A N/A
Unknown at this time

N/A
Unknown at this time

N/A N/A N/A Unknown at this time

Unknown at Unknown at this time this time N/A N/A

Unknown at this time
N/A

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 11 of 17

-4-

Raleigh North/Thetford III River Falls/Thetford Ill Riverside Village Rock Creek Terrace San Tomas Sierra Vista Silverlake Village Southg,ate/Thetford IV
St..Georg~,,s Plaza

Yes

12/00/90 and 6/5/92 12/00/90 12/12/90 and 6/5/92

Yes

8/13/93 N/A 9/1/93

Yes
Yes

No Yes

Approved in HUD letter dated 4/25/94 N/A Approved in HUD letter dated 9/27/94

Unknown at this time N/A

As of 1111194
N/A
N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A Unknown at this time

Stewarts Creek/Thefford IV Su Casa Por Cortez Suburbia Fairfax

No No No No Yes No No No No No No No Yes

N/A N/A
N/A N/A 12/00/90 N/A N/A N/A N/A N/A N/A
N/A

N/A N/A N/A
No

N/A N/A

N/A N/A
N/A N/A N/A N/A N/A

N/A
N/A N/A N/A N/A N/A N/A N/A N/A 12/22/93

N/A N/A
N/A

N/A
N/A
N/A

suehar
Tower West Town & Country I & II .... Tucker Street/Thefford

N/A N/A N/A N/A
Yes

N/A
N/A

12/00/90 and 6/5/92

Denied Preliminary Approval in HUD letter dated 2/18/94; subsequent approval not known at this time
N/A

Victorian Arms Waipahu Tower .Washington Plaza Washington Street (d/b/a Deanswood)/Thetford III Young Avenue/Thetford IIl

No

,,,

Yes Yes

N/A N/A 12/28/90 12/00/90 12/00/90

N/A

N/A

N/A
N/A N/A N/A N/A

N/A
No
No

N/A
N/A N/A

N/A
N/A

No

N/A

N/A

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 12 of 17

-5-

100 Centre Street

Yes

Unknown at Yes this time

1550 Beacon Street Algonquin Heights Anaheim Gardens

Yes

6/5/92 N/A 7/20/92

Yes

N/A
Yes

Yes

Conditionally Approved in HUD letter dated 9/27/95 Unknown at Unknown at this time this time N/A N/A Approved in 5/18/94 HUD letter dated 1/31/95 3/21/95

Approval letter states no funds available Unknown at this time N/A HUD letter dated 6/29/95 stating no funds available

BeaumontiThetford IIII Brandy Hill Brookside Manor Buckman Gardens

No No Yes

N/A

N/A 12/23/94 4/12/93

N/A N/A
Yes

N/A
N/A 6/12/96 3/23/95

Yes

Yes

N/A N/A Approved in HUD letter dated 8/12/96 Conditionally Approved in HUD letter dated 9/30/95
Unknown at this time

N/A
N/A Unknown at this time Unknown at this time
Unknown at this time

Calico Court (d/b/a Crab Point)/Thefford IV Cedar Gardens

Yes Yes

6/5/92 2/22/91 and 10/20/92

Yes

1/4/95

by

Yes Plan of 4/15/95 Action filed Purchaser

HUD letter dated 6/15/95 refers to a 5/12/95 approval date of the nonprofit Purchaser's Plan of Action

Chauncy House

Yes

10/19/93

Yes

8/10/95

Unknown at this time

HUD letter dated 6/15/95 no funds available; HUD letter dated 6/22/95 reaffirmed no funds; appears funds not provided as of 10/24/95 letter from HUD addressing request to prepay As of 9/26/97

Cherry Branch (Kimberly Gardens)

Yes

12/22/94

Unknown at Unknown at Unknown at this time this time this time

Unknown at this time

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 13 of 17

-6-

Chowan Court/Thefford IV Coleridge Road!Thetford III Columbus CourtJThetford IV
Countrytowne Apartments

Unknown at Unknown at Unknown at Unknown at Unknown at this time this time this time this time this time
NO

N/A N/A Unknown at Unknown at Unknown at this time this time this time Yes 5/4/94 Yes~
Yes

N/A Unknown at this time 4/16/96

N/A

Unknown at this time N/A
Unknown at this time

Creekside Terrace

Unknown at Yes this time

Unknown at this time Unknown at this time On or about Approved in 1 / 19/94 HUD letter based on dated HUD letter 10/11/94
confirming receipt

Unknown at this time
Unknown at this time

Cromwell Court Dolly Ann Apts.
Emory Grove (Willow Creek)

No Yes

N/A 1/26/95

N/A
Yes

N/A
5/21/96
2/15/96

N/A
Approved in HUD letter dated 7/12/96 Approved in HUD letter dated 7/23/96 Unknown at this time N/A
N/A Unknown at this time

N/A
Unknown at this time

Yes

4/6/94 and 8/8/94
8/8/94 6/17/92
6/17/92

Yes

Unk~aown at this time Unknown at this time N/A N/A Unknown at this time Unknown at this time
Unknown'at this time

First Landmark Florin Meadows I Florin Meadows II Foothill Forest Glen ]
Forest Glen II

Yes Yes Yes
Yes

Yes No No Yes Yes

9/5/95
N/A N/A 2/10/94

5/8/92 l/30/95
1/30/95

Yes

6/14/96 6/13/96 N/A
1/16/95 2/3/95

Yes

Yes

Fort Heath Franklin Court/Thetford IV Garrison Forest

No
Yes

N/A "6/5/92 Unknown at this time
11/13/92 11113192

N/A
Yes Yes

Approved in HUD letter dated 8/2/96 Approved in HUD letter dated 8/2/96 N/A
Unknown at this time

N/A
Unknown at this time Unknown at this time

Yes

Glenarden/Glenreed L.P. Glenreed/Glenarden L.P.

Yes

Yes

12/22/95 12/22/95

Approved in HUD letter dated 10/17/95 Approved in HUD letter dated 7/12/96
Approved in HUD letter dated 7/12/96

unknown at this time Unknown at this time

Yes

Yes

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 14 of 17

-7-

Glendale Court/Thefford IV Glenview Gardens

Yes
Yes

6/5/92
12/802

Yes
Yes

12/23/94 4/26/96

Unknown at this time Conditionally Approved in HUD letter dated 7/11/96

Unknown at this time

Unknown at this time

Halawa View Hardee Street/Thefford HI

Yes

12/31/92

Yes

Unknown at .... Approved in this time HUD letter
dated 7/1/96 Unknown at ....... Conditionally this time Approved in HUD letter dated 3/3/96 Unknown at this time Unknown at this time Unknown at this time Unknown at this time Unknown at Unknown at this time this time Unknown at Unknown at this time this time 12/]4/95 Unknown at this time ] 0/10/95 Approved by
HUD in letter dated 7/23/96

Unknown at this time
Per 3/3/96 HUD letter, no funding available
Unknown at this time

Henry Street/Thetford II1
Holiday Town/Thefford III

Holiday Town II/Thefford IV Holloway Court/Thefford III lcemorelee Street/Thetford HI Indian Head Manor
Jefferson Court/Thetford IV

Unknown at Unknown at Yes, based this time this time on 3/3/96 HUD approval letter Unknown at Unknown at Unknown at this time this time this time Unknown at Unknown at Unknown at this time tl~is time this time Unknown at Unknown at Unknown at this time this time this time Unknown at Unknown at Unknown at this time this time this time Yes 0/4194 Yes
Yes

Unknown at this time Unknown at this time Unknown at this time Unknown at this time
Unknown at this time

6/5/92 6/5/92

Yes

Yes

Jewel Lake Villa I Jewel Lake Villa I1
Jodani Johnson CourtJThefford lit Kings Grant

Yes

6/12/92 6/12/92 N/A 6/5/92 12/27/90

Yes
No Yes Yes

On or about Approved by 6/17/94 HUD in letter dated 12/22/94 as supplemented in letter dated 3/16/95 Unknown at Unknown at Unknown at this time this time this lime Unknown at Unknown at Unknown at this time this time this time N/A N/A N/A Yes 1/16/95 Unknown at
Yes

Unknown at this time

this time
No

N/A

N/A

Unknown at this time Unknown at this time N/A Unknown at this time N/A

0245849.

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 15 of 17

-8-

Leader House

Yes

5/3/93

Yes

t0/28/96

Approved in HUD letter dated 2/12/97

Long Drive I/Thetford IV Market North I/Thetford IV Market North II/Thefford IV Metro West

Yes
Yes

6/5/92 6/5/92 6/5/92 10/1/92

Y-es Yes

Millbank CourtJThetford III

Millwood Townhomes/Mid City

No Yes

N/A
9/3/92

Milwood Apts/Biafora

Yes

5/8/92

Napa Park New Amsterdam

Yes

6/5/92 5/3/93

Yes

Unknown at this time Unknown at Yes 10121/94 this time Unknown at Unknown at Unknown at this time this time this time 8/29/94 Approved in Yes HUD letter dated 8/4/95 as revised in 12/1/95 letter N/A N/A N/A Approved in Yes 4/22/94 HUD letter dated 10/21/94 Yes On or about Approved as 8/17/93 of 2/24/94 as stated in HUD letter dated 3/4/94 On or about Approved in Yes HUD letter 2/1/95 dated 3/8/95 Approved in Yes 10/28/96 HUD letter dated 2/12/97
Yes

7/21/94

No funding available due to limited budget authority Unknown at this time'
Unknown at this time Unknown at this time

HUD letter dated 9/11/95 stating no funds available N/A Unknown at this time Unknown at this time

Unknown at this time No funding available due to limited budget authority N/A
Unknown at this time Unknown at this time

Oakwood Ave/Thetford IV Oakwood Ave ll/Thetford IV
Ontario Townhouses

N/A Unknown at Unknown at Unknown at Unknown at Unknown at this time this time this time this time this time 2/28/94 Approved as 7/2/92 Yes Yes
No

N/A

N/A

N/A

Palomar

Yes

7/29/92 and 8/17/92

Yes

1/10/95

of 1/1/95 as stated in HUD letter dated 12/29/94 Approved in HUD letter dated 7/13/95

Unknown at this time

10245849,1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 16 of 17

-9-

Parthenia Manor

Yes~

5/8/92

Yes

On or about Approved effective 8/12/93

Unknown at this time

Peachtree Court/Thetford IV Person CouWThefford III Pine Crest Raleigh North/Thetford III River Falls/Thetford Ill

2/24/94 in HUD letter dated 3/4/94 Unknown at Unknown at Unknown at Unknown at Unknown at this time this time this time this time this time N/A N/A N/A No N/A N/A N/A N/A N/A No N/A ' N/A N/A N/A No Conditionally 8/23/95 6/5/92 Yes Yes
Approved in HUD letter dated I 0/31/95
No Yes

Unknown at this time

N/A N/A N/A Unknown at this time

Riverside Village Rock Creek Terrace San Tomas
Sierra Vista 1

N/A 6/19/92 5/8/92 6/22/92 5/8/92

N/A
Yes

N/A 7/22/94

Yes

Yes

Yes

Yes

Silverlake Village

Yes

Yes

Southgate/Thetford IV

Yes

6/5/92

Yes

N/A Approved in HUD letter dated 1/31/95 Approved in 1 / 17/94 HUD letter dated 9/9/94 9/2/94 Approved in HUD letter dated 1/19/95 Original Approved in date HUD letter unknown at dated 4/27/95 as amended in this time, revised letters dated 11/6/95 and 3/28/95 12/13/95 Conditionally 7/15/94

N/A Unknown at this time
Unknown at this time

Unknown at this time HUD letter dated 9/11/95 stating no funds available, amended 9/20/95 Unknown at this time Unknown at this time

St. George's Plaza

Yes

6/1/92

Stewarts Creek/Thetford IV

Yes

l l/23/94

Approved in HUD letter dated 12/4/95 Approved in Yes 6/4/96 HUD letter dated 7/12/96 and supplemented in HUD letter dated 2/12/97 Unknown at Unknown at Unknown at this time this time this time

Unknown at this time

10245849.1

Case 1:93-cv-00655-MMS

Document 143-2

Filed 02/26/2007

Page 17 of 17

-10-

SU Casa Por Cortez

Yes

6/17/92

Yes

7/15/94

Suburbia Fairfax

Yes

7/10/92

Yes

9/13/95

Conditionally Unknown at this time Approved in HUD letter dated 2/3/95 Conditionally Unknown at this time Approved in
HUD letter dated 6/14/96

Suehar Tower West Town & Country ! & II Tucker Street/Thetford III Victorian Arms

No
Yes

N/A
5/14/92 9/14/93 N/A 7/29/92

N/A

Yes

No Yes

Waipahu Tower Washington Plaza Washington Street (d/b/a Deanswood)/Thetford III Young Avenue/Thetford III

Yes Yes
Yes

4/27/93 8/6/92 6/5/92

Yes

11/23/94

N/A Approved in Yes 3120/95 HUD letter dated 5/18/95 Approved in Yes 1/24/95 HUD letter dated 4/27/95 N/A N/A N/A Conditionally Yes 6/20/94 Approved in HUD letter dated 12/22/94 Unknown at Unknown at Unknown at this time this time this time On or about Unknown at Yes 2/23/95 this time Conditionally Yes 8/28/95 Approved in HUD letter dated 12/7/95 Unknown at Unknown at Unknown at this time this time this time

N/A January1995 Unknown at this time N/A Unknown at this time

Unknown at this time Unknown at this time Unknown at this time Unknown at this time

10245849.1

Case 1:93-cv-00655-MMS

Document 143-3

Filed 02/26/2007

Page 1 of 5

U.S. Department of Justice Civil Division DMC :BMS :DHarrington DJ No. 154-93-655 & 154-97-582 Telephone: (202) 616-0465 Facsimile: (202) 307-0972
Washington, D.C. 20530

February 5, 2007
Via Facsimile & U.S. Mail

Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582C (Fed. C1.).

Dear Mr. Kelly: As you lcnow, the United States served inten'ogatories, requests: for production and requests for admission upon the plaintiffs in July 2006. We received your written response to oui" discovery on January 12, 2007, and, based upon our preliminary review, have a substantial number of concerns. I. Plaintiffs' Interrogatory. Answers

Most of the interrogator~, answers provided by the plaintiffs are incomplete or provide no information whatsoever. The United States served carefully crafted interrogatories that sought information about the ripeness of plaintiffs' claims or requested information needed to conduct meaningful deposition discovery. It is disappointing that, after providing plaintiffs an additional five months to respond to our inten'ogatories, complete answers, have not been received. The most significant deficiencies with the plaintiffs' answers are addressed below. It is our hope :that we can resolve these issues without court involvement. A. Interrogatory 1

Interrogatory 1 seeks information about the identity of the owners of the projects at issue in this litigation. This information is essential to conduct deposition discovery on ripeness issues and, therefore, is proper under the Rules of the Court of Federal Claims. Se__._~e RCFC 26(b)(1) (authorizing the discovery of information "calculated to lead to the discovery of admissible evidence").

Case 1:93-cv-00655-MMS

Document 143-3

Filed 02/26/2007

Page 2 of 5

-2Your answer to interrogatory 1 provides no information about the identity of the owners of the subject properties on the ground that the interrogatory is overly broad and seeks information not relevant to ripeness. As explained above, your objection that the information sought by interrogatory 1 is not relevant to ripeness is misplaced. However, given that the Preservation Statutes were not enacted until 1987, it would be sufficient for present purposes to identify the owners of each of the subject properties from 1987 to the present. B. Interrogatories 2 and 3

Interrogatories 2 and 3 request information about all actions taken pursuant to the Preservation Statutes. The Preservation Statues established a complex administrative process through which a project owner could prepay, sell or receive monetary incentives. A clear understanding 0f the actions occurring in this administrative process is necessary to assess whether plaintiffs' as-applied taldng claims are ripe. While a summary table containing some information about the administrative process was attached to plaintiffs' interrogatory answers, the plaintiffs' response to interrogatories 2 and 3 is nevertheless incomplete. For instance, the summm3~ table frequently gives a date when a plan of action ("POA") was submitted to HUD, and may even indicate whether the plan of action was approved by HUD, but gives no information about what action the owner's POA requests (e._~., a request for permission to prepay, a request for a use agreement providing financial incentives, or a request to sell to a qualified purchaser) and fails to indicate whether the POA was in fact implemented (e._g~.; a use agreement was executed). Additionally, while the plaintiffs' inten-ogatory answers state that '°HUD routinely approved, conditionally approved, rejected and/or rejected and later approved plains of action," the summary table appears to omit information about the plan of action process such as instances when the owner withdrew a POA, chose to revise a pending POA, or submitted a secondPOA after an initial POA was rejected. Please promptly supplement your interrogatory answer to provide a complete response to interrogatories 2 and 3. We also find unclear the entry in the summary table attached to your interrogatory answers concerning the "Glenarden/Glenreed L.P." project. The first amended complaint in the Algonquin Heights case identifies Glenarden L.P. as the owner of Glenarden Woods Apartments. P1.'s First Am. Compl. ¶ 8. Glenarden L.P. also owns the Glenreed Apartment project. Id_=. Please let u~ know if the "Glenarden/Glenreed L.P." entry is intended to refer to the Glenarden Woods project owa~ed by Glenarden L.P. C. Interrogatory. 4

Interrogatory 4 seeks information about communications between the owners and HUD regarding prepayment. The plaintiffs have provided no substantive response to this interrogatory.

Case 1:93-cv-00655-MMS

Document 143-3

Filed 02/26/2007

Page 3 of 5

-3With respect to '°oral communications," you state that the information is better obtained through deposition testimony. However, the failure to provide information about who engaged in discussions with HUD about prepayment makes it impossible to notice depositions to obtain more detaile.d information. Please provide an answer to this interrogatory describing any oral communications between HUD and the owners regarding prepayment. With respect to "written communications," you state that such communications have been provided "as part of Plaintiffs' rolling document production." The plaintiffs have produced tens of thousands of pages of material. Although under RCFC 33(d) a party may ch~se to identify " documents from which the answer to an ~interrogatory can be derived, a general reference to a mass undifferentiated documents does not comport with RCFC 33(d), See~ e._g~., O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 277 (C.D. Cal. 1999) ("Rule 33(d) is not satisfied by the wholesale dumping of documents."); Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486, 489 (W.D.N.C. 1998) (°'A party that responds to an interrogatory under the provision.s of Rule 33 (d) abuses this option when the responding party simply directs the interrogating party to a mass of business records or offers to make all of their records generally available."). Rather, "a responding party has theduty to specify by category and location, the records from which answers to interrogatories can be derived." Capacchione, 182 F.R.D. at 489 (quoting Fed.R.Civ.P. 33 (advisory committee's note)); accord Oleson v. Kmart Corp., 175 F.R.D. 560, 563 (D. Kan. 1997). With respect to written communications, please provide Bates numbers or a description that allows the documents that contain discussions about the possibility of prepayment to be readily located. D. Interrogatories 5 and 6

An "as-applied" taking claim does not ripen "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Palazzolo v.. Rhode Island, 533 U.S. 606, 618 (2001) (emphasis added). Interrogatories 5 and 6 ask the plaintiffs to identify the date upon which they contend that HUD reached a "final decision" regarding application of the Preservation Statutes to their property. You object to these interrogatories on the ground that there "were multiple points of decision" in the administrative process established by the Preservation Statutes. Your objection. misses the point. We have requested that the plaintiffs identify the date upon which they contend that HUD rendered the "final decision" that ripened their as-applied taking claim. This information is central to the ripeness inquiry. Please promptly provide a responsive answer to these interrogatories. If the plaintiffs do not contend that HUD reached a final decision regarding the application of either ELIHPA or LIHPRHA, a statement aclcnowledging this fact would be Sufficient.

Case 1:93-cv-00655-MMS

Document 143-3

Filed 02/26/2007

Page 4 of 5

-4E. Interrogatory. 7

Interrogatory 7 seeks the factual basis for any contention by a plaintiff that applying to HUD to prepay pursuant to the Preservation Statutes was futile. Rather than answer this interrogatory, you object that the interrogatory calls for a legal conclusion, is vague, over broad and burdensome. See Pls.' Resp. To Def.'s First Set of Interrogs. at 6. These objections are baseless. As an initial matter, the plain language of our interrogatory requests that you state all facts upon which you base any claim that applying to prepay was under the Preservation Statutes was futile. Thus, the interrogatory does not seek a legal conclusion. Furthermore, information concerning any claim of.futility is an essential part of discovery concerning the issue of ripeness. If you persist in asserting objections to this interrogatory, we will feel compelled to take this issue to the Court. II. Plaintiff's Admissions

In our first set of requests for admissions, we asked plaintiffs to admit that they had not. applied to piepay pursuant to the Preservation Statutes. The Preservation Statutes establish an administrative process for obtaining permission to prepay. Under both ELIHPA and LIHPRHA, the owner's submission of a plan of action to prepay is an essential step in.this process. See ELIHPA §§ 221-23; 12 U.S.C. §§ 4101(a), 4108. Plaintiff's interrogatory answers state that many owners did not submit any plan.of action under one or both of the Preservation Statutes. However, in response to our request for admission, these same plaintiffs deny that they failed to apply to prepay. The response to these requests for admission is inconsistent with the plaintiffs' own interrogatory answers. Accordingly, we urge plaintiffs to reconsider the denial of our first and third requests for admission. See RCFC 37(c)(2). III. Plaintiffs' Production of Documents

By letter dated Nov.ember 27, 2006, we requested certain basic information (e._~., the name of the plaintiff who produced the documents, the significance of the bates number prefixes on the documents) about the documents that have been produced in the Anaheim Gardens and Algonquin Heights actions. This information is essential given the numerous plaintiffs in these actions, the large volume of documents produced, and plaintiffs' use of RCFC 33(d) in some of its interrogatory answers.. W, hile you have agreed to provide the requested information, no information about the plaintiffs' document production has not yet been received. Please contact me at your earliest convenience to discuss when it should be anticipated.

Case 1:93-cv-00655-MMS

Document 143-3 -5-

Filed 02/26/2007

Page 5 of 5

Vel), trdly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch
CC:

Terri L. Roman, Esq. Alice A. Peterson, Esq.

Case 1:93-cv-00655-MMS

Document 143-4

Filed 02/26/2007

Page 1 of 12

NIXON PEABODY LLP
ATTORNEYS AT LAW

Suite 900 401 9th Street, N.W. Washington, D.C. 20004-2128 (202) 585-8000 Fax: (202) 585-8080 Harry J. Kelly Direct Dial: (202) 585-8712 E-Maih h kelly@nixon peabody.corn

February 14, 2007

VIA HAND DELIVERY David Harrington, Esq. Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 LStreet, NW Room 12136 Washington, DC 20530 Re: Anaheim Gardens/Algonquin Heights Dear Mr. Harrington: As indicated in my letter to you of February 6, 2007, this letter responds in detail to your letter to me dated February 5, 2007. As I mentioned in that earlier letter, I was disappointed by the timing, content and tone of your February 5 letter, which attacked both the scope and substance of our prior discovery responses. Again, for the record, I entirely reject any such attacks on our discovery responses, which fully satisfied the requirements of the Rules of the Court of Federal Claims ("RCFC"). Your letter does not fairly reflect the content of our responses, nor does it take account of our other communications on discovery matters in which you and I have engaged. I believe when those communications are considered, many o. fthe objections you raise evaporate. To the extent you have remaining questions, however, I will address them in this letter and, as appropriate, hope to work with you further to resolve them. The letter first discusses your February 5 letter in the context of our discovery communications and activities to date, and then responds to the specific questions that letter raised.

10311554.1 ALBANY, NY ¯ BOSTON, MA - BUFFALO, NY ¯ GARDEN CITY, NY ¯ HARTFORD, CT ¯ LOS ANGELES, CA ¯ MANCHESTER, NH ¯ McLEAN, VA. NEW YORK, NY ORANGE COUNTY, CA ¯ PALM BEACH GARDENS, FL ¯ PHILADELPHIA, PA ¯ PROVIDENCE, RI ¯ ROCHESTER, NY ¯ SAN FRANCISCO, CA ¯ WASHINGTON,'DC

Case 1:93-cv-00655-MMS

Document 143-4

Filed 02/26/2007

Page 2 of 12

NIXON PEABODY LLP David Harrington, Esq. February 14, 2007 Page 2
The February 5 Letter Is Premature Due To The Plaintiffs' Outstanding Proposal To Exchange Databases and the Pending Responses of the Government.

Your February 5 letter is premature for several reasons. First, many of the matters you raise in your letter can be resolved by reviewing the documents we have produced to you, as discussed in more detail below. At the outset, we did not, as your February 5 letter seems to suggest (at 3), attempt to burden you by "dumping" an undifferentiated mass of documents upon you. To the contrary - at very large expense to the plaintiffs -- we carefully culled thousand of pages of nonresponsive materials from the raw files that our clients provided to us and delivered to you only those materials that fairly responded to your requests. While our production was exhaustive and comprehensive, it was not padded, but rather represented a very scrupulous attempt to produce materials that you requested. As an alternative, we could have shifted that entire burden of production onto you and simply given you access to the raw files (with the exception of privileged materials), and let you select the documents you wanted, at which point you could produce your own index to those documents. While I did not expect you to congratulate us on the scope of our production, I am dismayed that you would cite our good faith response as somehow intended to burden or oppress you. As you point out, you requested in your November 27, 2006 letter that the plaintiffs prepare an index that would allow you to search through the documents we have been producing to you since last September on a property by property basis. When this issue first arose early in December 2006, we discussed preparing some form of index that would allow you to search by Bates-stamp number the documents that relate to each property among the 90,000+ pages of documents that we produced in response to your document requests. At the same time, I offered, as a courtesy, to provide to the government a copy of our document database, if the government would agree to provide its database to us. That would provide a far more sophisticated search capability to you, because we have "tagged" a variety of the most critical documents, such as the notices of intent and plans of action (to the extent available) for each plaintiff; to.the extent you want to tag other documents, of course, you could do so easily. It would also allow you to extract documents on a property by property basis, and make a number of more useful searches of the documentary database. In response, you indicated - that the proposed exchange was attractive, but that you needed to consult with your colleagues at the Department of Justice ("DOJ") and your client at the Department of Housing and Urban Development ("HUD"), to see if they were comfortable with such an exchange, and also determine if there were any technical obstacles to the exchange. I made this proposal to you in my email dated December 6, 2006 - more than two months ago. Please see a copy of the email (pg. 1, ¶3), attached. In that same email, I said I would provide an index of"identifying information" to you "[i]f a reciprocal database sharing isn't practicable." It was entirely appropriate to request that
10311554.1

Case 1:93-cv-00655-MMS NIXON PEABODY LLP

Document 143-4

Filed 02/26/2007

Page 3 of 12

David Harrington, Esq. February 14, 2007 Page 3 determination before preparing the index: producing a property-by-property index in hard copy is a time-consuming and expensive process that requires one of our paralegals to search the database on a property by property basis. Frankly, it would be a waste of our time to give you a voluminous hard copy index of our production only to learn la~er that you decided to accept our proposal for a database exchange, which, as noted above, will provide much more robust search abilities to you than a hard copy index would allow. For that reason, you and I never set a date to turn over the index to you, because I was waiting for your response to the database exchange. Nevertheless, the written discovery responses you received in January 2007 were made while our offer was pending. You have been aware since December 6, 2006, therefore, of our intent to provide additional identifying information to you, either by way of an index or a database exchange. More than six weeks after sending my email to you, however, I have not received a response to my proposal. In fact, shortly after my eye surgery last month, when I called you to give my consent to the additional 70 days you requested for your discovery responses, I repeated both the offer of the document index and the database exchange. You indicated that you had spoken with others at HUD and DOJ about the proposed exchange, but did not have a final response. As you January 26, 2007 noted, we agreed to speak further about this when I returned from recuperating from my surgery, but that letter made no mention of my outstanding offer to exchange databases. Your February 5 letter arrived shortly I returned to the office - and again, without any indication of your response to the database exchange proposal in made more than two months ago. I am particularly distressed, therefore, that you would contend that, in connection with several interrogatory responses in which we directed you to look to our document production, we have failed to provide you with identifying information pursuant to RCFC 33(d). For more than two months, we have been waiting to provide that information to you. You cannot contend that we have failed to meet our obligation under RCFC 33(d) where, for more than two months, we have waited for you to respond to our straight-forward request to exchange databases. Simply put, there is no basis for your objections to the content of our interrogatory responses in light of your failure to respond to our proposal to provide that specific information. Although you have not responded to our offer to exchange databases, that offer remains outstanding and, I believe, would be extremely useful to both sides. Nevertheless, although you have not informed me about whether or not the proposed database exchange is amenable to you, I have, as a show of good faith, directed our paralegal to compile the index in hard copy. A copy of that index is enclosed with this letter.1
~ In your letters of November 27, 2006, you ask us to explain "the significance of the bates [sic] number prefixes" on the documents we produced. You have renewed that request in subsequent correspondence. The prefix was the letters "IRH." We could use any combination of letters, numbers and symbols we wanted to identify our documents and in more than two decades of litigation, I have never had opposing counsel contend that our choice for prefix was in any sense a proper subject for discovery. Without conceding that the information is
10311554.1

Case 1:93-cv-00655-MMS NIXON PEABODY LLP

Document 143-4

Filed 02/26/2007

Page 4 of 12

David Harrington, Esq. February 14, 2007 Page 4 Your letter is premature in a second respect. As you know, at your request, the plaintiffs initiated a "rolling" document production in August 2006. Our production continued until midDecember 2006, by which time we had produced over 90,000 pages of responsive documents to you. As Exhibit A to our interrogatory responses indicates, several of the plaintiffs were unable to locate a complete set of documents that were responsive to your.document requests and interrogatories. As the cover letter mentions, we anticipate that many of these documents will be found in the materials that are responsive to our document production requests and we promised then - and we renew that promise now - to amend or supplement our responses as appropriate when and if those materials are produced by the government. To the extent that your February 5 letter seek additional responses with respect such. matters, we cannot amend or supplement our responses further until that production is complete - and at the moment, it will not be complete until at least April 6, 2007, as a result of the discovery extension to which we agreed. Obviously, we cannot provide information we do not have but, to the extent we obtain additional information from your documents that provide grounds to amend or supplement the responses we have already provided, we will do so (again, exchanging databases may allow us to accelerate that process). Finally, when I consented to the additional time you requested last month, I asked that you provide the same sort of rolling production of your documents that we provided to you, so that we could begin reviewing your documents and would not be deluged with documents whenever you complete your responses. Although you have not contacted me to respond to that offer, I did receive two boxes of documents late in the afternoon of February 9, which apparently constitutes a de facto agreement to engage in such a rolling production. Nevertheless, I should point out that, at your insistence, within 45 days of service of your discovery requests, we had produced more than 4000 pages of documents to you. In contrast, our discovery requests were served upon you on October 27, 2006, and it took more than 104 days after we served those requests before we received the first responsive documentation from you. Given the fact that it took almost twice as long for the government to produce its first documents to us as it took for us to produce our first documents to you - and that it apparently remains unable after more than two months to determine whether it will exchange databases with us - the government is frankly in no position to complain about any aspect of the plaintiffs' discovery responses to date.2
2. Specific Responses to the February 5 Letter

Your February 5 letter raised questions about a number of our specific discovery responses. Many of the preceding points apply to these criticisms. In other places, it appears
irrelevant and not discoverable, as a courtesy to you, I will inform you that the pref'bx we used was selected solely to assist with billing the copying and production charges for these materials, and to assure that these documents would have a prefix distinct from prefixes used in other litigation in this office. z To the extent that the documents we received last week was intended to