Free Joint Status Report - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff v. THE UNITED STATES, Defendant

CASE NO: 03-CV-289 Judge Allegra

JOINT STATUS REPORT (November 6, 2006) TO THE HONORABLE UNITED STATES COURT OF FEDERAL CLAIMS: Pursuant to the Court's order of October 20, 2006, the parties file this Joint Status Report dated November 6, 2006 describing the status of each item subject to the Court's document preservation order of September 8, 2006 and its Order of August 24, 2006 as follows:

I.

Status of Compliance with Document Preservation Order:

Order Reference Paragraph 3(a)

Compliance Item Description of various items currently possessed by the designated facilities. The order required detailed descriptions of searches made if a claim of no documents existed, belief whether such documents once existed and were destroyed, and if destroyed, when and how.

Status The facilities have served affidavits on Plaintiff's counsel. Plaintiff believes, however, that many do not comply with the Court's preservation order, particularly with respect to investigative efforts and belief regarding prior existence. Attached as Exhibit A is Plaintiff's Statement of Position with respect to each of these affidavits.

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Order Reference Paragraph 3(b)

Compliance Item A designation of records Plaintiff wishes to inspect.

Status Designation not due until November 17, 2006. Defendant expects to timely comply except with respect to the records of the Defense Manpower Data Center. That facility's records have software and operational security issues that the agency is attempting to resolve. Not yet due. Defendant has produced several hundred thousand pages of documents as tiff images. Defendant anticipates production of a substantial additional quantity. The records are identified only by facility and electronic bates number, not by discovery category to which they apply. Accordingly, Plaintiff anticipates seeking an enlargement of time to inspect original documents. Plaintiff believes some of the documents produced as tiff images actually were stored in spreadsheet format. Plaintiff believes it can identify these by November 17, 2006. Defendant has complied. Defendant has complied.

3(c)

Inspection of Records by Plaintiff.

3(d)

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Production of Electronic Records in the format in which they have been stored. Compliance Monitoring. Dissemination of Preservation Order.

II.

Status of Compliance with Order of August 24, 2006.

Order Reference Paragraph 1(b)

Compliance Item Discovery Plan.

Status The parties submitted a proposed discovery plan on August 31, 2006. The Court did not rule on the proposal. Based on the volume of documents produced by the Government and the volume of remaining documents, the parties are not in a position to reaffirm that plan and believe another plan should be proposed sometime following completion of document production by the Government. 2

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Order Reference Paragraph 1(c)(i)

Compliance Item Schedule for production of all communications regarding document retention, preservation or destruction of evidence.

Status The parties have proposed a schedule. That item remains relevant and is important to identification of remaining issues. Plaintiff's position is that the Government has not provided any evidence that it communicated the relevant discovery issues to the MTFs prior to 2005 and that this is relevant to Plaintiff's sanction motions. The parties request a Court order adopting the dates set forth below. The parties' prior proposed schedule is not realistic and may not be prove fruitful. This schedule may need to be modified in view of the discovery obtained since entry of the Document Preservation Order and following production and filing of the communications documents contemplated by 1(c)(i). Complete. Complete. Complete.

1(c)(ii)

Deposition Schedule.

1(c)(iii) 2 3 (a)

3(b)

Various filings by Defendant. Various filings by Plaintiff. Deadline for filing memorandum explaining document retention policies of Defendant. Deadline for completion of production of scanned documents.

Defendant has proceeded diligently and produced hundreds of thousands of tiff images. Nevertheless, it has not been able to meet its deadlines and has not yet completed production. Additionally, software and operational security issues have arisen with respect to the Defense Manpower Data Center documents that need to be resolved.

The parties propose that two items need to be completed prior to further proposal regarding discovery and trial. These items are the filing and production of the communications contemplated by the Court's order of August 24, 2006, paragraph 3

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1(c)(i) and the completion of production contemplated by paragraph 3(b) of that same order. Defendant believes it is on schedule to produce all, or substantially all, of the

communications described in paragraph 1(c)(i) by December 22, 2006. (Due to retention policies that were initiated in connection with other litigation, the Department of Justice possesses hundreds of e-mail archive tapes dating back, in some instances, to before 2001. Since late August 2006, the Department of Justice has been identifying,

duplicating, and searching the relevant tapes for responsive communications.) The credit card transactions records maintained by the Defense Manpower Data Center ("DMDC") constitute the principal "sticking point" in completing the production of documents under paragraph 3(b) of the August 24, 2006 order. Owing to the extreme size of this data set; the specialized software required to manipulate it; and security concerns surrounding the release of detailed military purchasing data, defendant will need to confer with plaintiff to agree upon protocols for the release and use of the DMDC records. Defendant will make its best efforts to have those arrangements in place before mid-December. Signed November 6, 2006.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Kyle Chadwick KYLE CHADWICK Sr. Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 305-7644 Attorneys for Defendant CERTIFICATE OF SERVICE No service needed.

s/Frank L. Broyles FRANK L. BROYLES TX State Bar No. 03230500 GOINS, UNDERKOFLER, CRAWFORD & LANGDON, LLP 1201 Elm Street 4800 Renaissance Tower Dallas, Texas 75270 (214) 969-5454 Attorneys for Plaintiff

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff v. THE UNITED STATES, Defendant

CASE NO: 03-CV-289 Judge Allegra

EXHIBIT A TO:

JOINT STATUS REPORT (November 6, 2006)

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Facility Affiant 2(a) 2(b) Docs in Possession? Purchase Methods Usage Data

AFMLO Major Love yes Apparently none

Altus AFB SGT Taylor 2000 ­ 01 sent to DOJ None since Medlog data and spreadsheets not retained None Apparently did not track med/surg spending None None None None None None None AFI 41-209 4.12.11 May 10, 2006 General Description No opinion expressed No opinion expressed

Brooks-City AFB Marc Tawil Yes, apparently sent to DOJ 2002 forward for electronic data; hard copies for prior years sent to DOJ Same as above 1998 forward sent to DOJ One CD sent to DOJ One file sent to DOJ none None none Some sent to DOJ none 41-209 (6 yrs 3 mo) Some Good Some Does not believe any docs destroyed Some inconsistency with respect to document destruction Affiant made good effort to comply with Court's orders

Cannon AFB Lt. Sabroski Yes No, assumes destroyed

2(c) 2(d) 2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k) 2(l)

GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure

Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none Apparently none General Description No opinion expressed No opinion expressed

No, assumes destroyed No, assumes destroyed No, assumes destroyed No No, assumes destroyed No, assumes destroyed No, assumes destroyed if ever received No, assumes destroyed No w/o explanation As previously reported No Generally described As noted above Unknown

Amounts owed under calls Document destruction Document Retention and Destruction Policies Notices to Preserve 2(m) Description of Efforts to Locate Statement of Belief re: existence of records at one time How and When Destroyed Docs produced Comments

Plaintiff wants to inspect if not produced on CD Affidavit is not compliant with Court's orders

Affidavit is not compliant with Court's orders

Affidavit is compliant with Court's orders.

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Facility Affiant 2(a) Docs in Possession? Purchase Methods

Dyess AFB Capt Baca All docs sent to DOJ

Goodfellow AFB Lt. A. Yuhas None, all previously sent to DOJ

Holloman AFB Major Massey None prior to 1999 due to 1-yr destruction policy. Oct 99 forward shipped to DOJ None in possession of facility. electronic data destroyed, any hard copies sent to DOJ Same as above Same as above Same as above None found. Apparently not believed to have existed. Same as 2(b) None none None None No new information May 19, 2006 was first notice found in records Adequate No new information No new information Evidences a good faith effort to comply.

2(b)

Usage Data

All docs sent to DOJ

2(c) 2(d) 2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k) 2(l) 2(m)

GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure Amounts owed under calls Document destruction Document Retention and Destruction Policies Notices to Preserve

All docs sent to DOJ None. Apparently pre-2003 destroyed All docs sent to DOJ All docs sent to DOJ All docs sent to DOJ All docs sent to DOJ All docs sent to DOJ All docs sent to DOJ All docs sent to DOJ No No Not compliant No opinion expressed No opinion expressed Not a reliable or compliant affidavit. See response to item (2) (l)

5 docs (Oct 99 to April 00) None prior to 03 due to Medlog to DMLSS conversion in Jan 05 06 talking paper sent to DOJ. None, all previously sent to DOJ None available no continuity of mgt. None available no continuity of mgt. None available since facility performed major spring cleaning in 2005 9 pages found. None available no continuity of mgt. None None AFRIMS T41-04 R12.00 & R13.00 Only since May 11, 2006 General Description Apparently yes Unknown One of the more complete affidavits. Evidences a good faith intent to comply with Court's orders

Description of Efforts to Locate Statement of Belief re: existence of records at one time How and When Destroyed Docs produced Comments

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Facility Affiant 2(a) 2(b) 2(c) Docs in Possession? Purchase Method Usage Data GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure Amounts owed under calls Document destruction

Kirtland AFB Lt. Rittberg Letters to be forwarded Credit card statements to be forwarded None, may have had them at one time but if so, forwarded to DOJ on Aug 7, 2006 As above6 As above As above As above Some to be forwarded Same as 2(c). As above As above AFI 41-209 3.39.2 6 yrs 3 mo none Satisfactory No response No response Avoided responsive affidavit by shipping docs to DOJ without maintaining log. Not compliant.

Laughlin AFB Sgt Wilson Yes No, must have been destroyed when DMLSS conversion in 2005 None, no knowledge of destruction None, but should have existed None None None, but did exist at one time None None None None, but destruction records normally not maintained None None Good Yes, as noted with respect to each category Not known Responsive and complete affidavit

Randolf AFB Lt Bogumil Yes, scanned by DOJ None None

2(d) 2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k) 2(l)

Credit card information for 2000 and 2001, scanned by DOJ None No responsive answer None None None None None AFI 41-209 None Reasonable No response No response Not compliant since so statement as to belief of prior existence and subsequent destruction.

Document Retention and Destruction Policies Notices to Preserve 2(m) Description of Efforts to Locate Statement of Belief re: existence of records at one time How and When Destroyed Comments

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Facility Affiant 2(a) 2(b) 2(c) 2(d) 2(e) 2(f) 2(g) 2(h) Docs in Possession? Purchase Method Usage Data GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion

Sheppard AFB Sgt Steele Yes (3.5 boxes for years 2000 ­ 2001) None None None None None None None

Tinker AFB Capt Breedlove None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ None, all docs previously sent to DOJ Not reasonably complete No response No response Affidavit is not compliant.

Vance AFB SGT Green Receiving reports Not maintained since no notice to maintain Not maintained since no notice to maintain Not maintained since no notice to maintain On tapes (no additional description) None found Not maintained since no notice to maintain Response not complete but apparently Not maintained since no notice to maintain Response not complete Not maintained since no notice to maintain Incomplete response Form 135, 8 boxes sent to DOJ None Not compliant Not compliant Not compliant Affidavit is not compliant

2(i) 2(j) 2(k) 2(l) 2(m)

Gov't Payment system failure Amounts owed under calls Document destruction Document Retention and Destruction Policies Notices to Preserve

None None Apparently none except for policies, see below AFI 64-117,37-139 table 64-4, rules 26, 26.2 No additional response None specifically described No response, but indication that docs were destroyed No response Compliance with Court's orders are marginal

Description of Efforts to Locate Documents Statement of Belief re: existence of records at one time How and When Destroyed Comments

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Facility Affiant 2(a) 2(b) 2(c) 2(d) Docs in Possession? Purchase Method Usage Data GEN I Usage Data Communication Financial Info

Brooke Army D. Thompson All sent to DOJ Not available Not available Not available

Darnall Army J. Tyler Credit card records, registers, receipts and invoices Prime vendor records None located Credit card records (no response regarding financial reports) One DOJ phone call in 2005 None found None found None found None found None found Does not believe any documents destroyed AR 25-400-2 None General description Apparently does not believe documents ever existed where none were found. Not applicable Questionable since DAPA items had to exist.

Reynolds Army

Some for later years, apparently provided to DOJ Spreadsheet for 2001 (not provided to Plaintiff) None maintained As previously provided

2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k)

GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure Amounts owed under calls Document destruction

Not available Not available Not available None available None available Believe reconciled, but records no longer available Documents destroyed in accordance with policy. Cryptic comment re: recycling See prior affidavit None available No additional Apparently believes documents were available No records Coupled with prior affidavit, reasonable effort to comply with spirit of orders

None found, but was reported (??) None Destroyed None found None found None found None found

2(l) 2(m)

Document Retention and Destruction Policies Notices to Preserve

AR 25-400-2 Amendolia email of Oct 2002 only communication Not described Only by implication. No direct statement except with respect to DAPA CDs. Not provided Want to see spreadsheet (2)(c). Marginal compliance with Court's orders.

Description of Efforts to Locate Documents Statement of Belief re: existence of records at one time How and When Destroyed Comments

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Facility Affiant Docs in Possession? Purchase Method Usage Data GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure Amounts owed under calls Document destruction

William Beaumont (Ft Bliss) Oscar Molinar Lynn Nelson Not responsive and indicates waiting on receipt of information Destroyed locally but sent to MEDCOM Destroyed Docs destroyed after 3 years Destroyed If any existed, they would have been destroyed. All records destroyed in 2003 No documents believed to have existed None None (no opinion regarding payment history) References attached files of lists of destroyed documents (not attached) AR 25-400 None prior to 2006. Provided As indicated in individual responses References to file numbers attached to affidavit, but not attached. Compliant

William Beaumont (Ft Huachuca) Cliff Songer

2(a) 2(b) 2(c) 2(d) 2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k) 2(l)

No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found No documents found Not described Apparently believes responsive data resided on Tammis system, but was destroyed in 2003 Apparently believes responsive data resided on Tammis system, but was destroyed in 2003 Not Compliant

Document Retention and Destruction Policies Notices to Preserve 2(m) Description of Efforts to Locate Documents Statement of Belief re: existence of records at one time How and When Destroyed Comments

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Facility Affiant Docs in Possession? Purchase Method Usage Data GEN I Usage Data Communication Financial Info GEN II Usage Data Communication Communications re: UMS Claims DAPA item docs Procedures to avoid diversion Gov't Payment system failure Amounts owed under calls Document destruction Document Retention and Destruction Policies Notices to Preserve 2(m) Description of Efforts to Locate Documents Statement of Belief re: existence of records at one time How and When Destroyed Comments 2(a) 2(b) 2(c) 2(d) 2(e) 2(f) 2(g) 2(h) 2(i) 2(j) 2(k) 2(l)

Corpus Christi NAS none Previously stated all documents had been destroyed

No description provided No statement provided n/a