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

LAW OFFICE OF EDWARD D. FITZHUGHS)))))))))))))))))))))))))))

Case 1:07-cv-00195-MMS

Document 25-6

Filed 01/25/2008

Page 1 of 2

P.O. BOX 24238 TEMPE, AZ 85285-4238 OFFICE - (480) 752-2200 FAX- (480) 752-2112

via fax 202-514-8624 January 17, 2008 Maame A.F. Ewusi-Mensah Assistant Attorney General Commercial Litigation Branch U.S. Department of Justice 1100 L Street, NW Washington, D.C. 20530 Attn: Classification Unit, 8th Floor Re: Boye, et al v. U.S.; Case No. 07-195C

Dear Ms. Ewusi-Mensah: After reading your correspondence and pleadings I believe we may yet reach a compromise on the discovery dispute. Initially we only have a semantic dispute on the subject of relevant discovery. The government's position is that only evidence of third party beneficiary status is relevant. The "merits of Plaintiffs claim" as you term it, is that they are third party beneficiaries. Your Motion For Protective Order requests the court limit discovery to documents addressing the interpretation of the contractual provisions concerning pay of law enforcement officers and criminal investigators. The government has not provided evidence of its interpretation of this provision and the CFR's requiring equal pay. Because of this we are compelled to obtain evidence, through whatever means, of its interpretation. If you will concede that, if Plaintiffs are third party beneficiaries they are entitled to be paid the BIA rate and that they have not been paid at the BIA rate then we do not at this time need to produce evidence of Plaintiffs' damages. If the government will also concede that, at lease for purposes of this motion, all 638 Contracts prior to the 2001 contract contained the same provision and wording concerning pay, we can postpone this request. However, all documents regarding the government's interpretation and implementation of the pay provisions and CFR's is relevant. This certainly would include any correspondence between the government and any 638Law enforcement contractor tribe. The complete BIA manual and law enforcement handbook are necessary in our effort to identify the government's interpretation and implementation of the pay provision and related CFR's.

Case 1:07-cv-00195-MMS January 17, 2008 Page 2

Document 25-6

Filed 01/25/2008

Page 2 of 2

If you believe documents the government produces addresses these two matters we may only need to take the depositions of Ms. Torres and Ms. Pinto and can postpone those of the "high ranking officials". Sincerely, /s/ Edward D. Fitzhugh Edward D. Fitzhugh EDF/bkd