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

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

HERNANDEZ, KROONE AND
4 ASSOCIATES, INC.,
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CASE NO. 07-165 C
**********

Plaintiff,

6

The Hon. Judge James F. Merow
vs.

7 THE UNITED STATES,
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Action Filed:

March 13, 2007

Defendant.

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PLAINTIFF HERNANDEZ KROONE AND ASSOCIATES, INC.'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL AND MOTION FOR ENLARGEMENT OF TIME
The Governent's combined motion to compel and motion for enlargement of time is

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nothing more than a continued - yet now a transparent - campaign of attacking HKA, discrediting
counsel, and confusing the legal and factual issues.

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HKA'S OPPOSITION TO MOTION TO COMPEL
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THE MOTION TO COMPEL IS PREMATURE, UNWARRANTED AND BROUGHT IN BAD FAITH
By an e-mail dated March 7,2008, HKA counsel notified Mr. Solomson that she would be

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out of the office the week of March 10, 2008 due to medical related leave and would not have
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access to any e-mail or regular mail, and requested the professional courtesy from Mr. Solomson
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that the Governent "not serve any papers during this time." (Exhibit 1 to Apanian Declaration)
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The Governent refused HKA's counsel the requested courtesy, and in fact served HKA
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with its March 12,2008 letter addressing two unrelated issues: (a) a meet and confer on HKA's

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discovery responses, and (b) the Government's request that HKA agree to enlarge the court
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established deadlines. The Government gave HKA two weeks from March 12, 2008 to respond i.
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28 1 In contrast, HKA counsel has extended opposing counsel multiple courtesies. For example, HKA has stipulated and

not opposed the Government's request for an enlargement to fie its answer, and enlargement to fie the Joint
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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

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Based on the Governent's own established deadline, HKA had until March 26, 2008 to provide
response to the meet and confer letter and to the Governent's request to enlarge time2..

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A day before the Government's established deadline for HKA to respond (and the filing of

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this motion), by a March 25, 2008 e-mail, counsel for HKA notified Mr. Solomson that in addition to being out of the office the week of March 10th, she had also been out of the offce most of the
week of March 17th and therefore "had not had the chance to respond to (Mr. Solomson's J March

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12,2008" discovery related meet and confer letter. Counsel specifically stated that she anticipated
that she would have HKA's response to the March 12, 20081etter "before April

4, 2008," (Exhibit
the March 25th e-maiL.

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2 to Apanian Declaration.) The Government's motion confirms receipt of

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The Government once again refused counsel the professional courtesy of the short
extension, ignored HKA's statement about its wilingness to further respond to the March 12,2008

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meet and confer letter on the discovery and fied its motion on the morning of March 26, 2008,

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even before the expiration of the deadline established in the Governent's March 12, 2008 letter.
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THE GOVERNMENT'S DISCOVERY IS PROCEDURALLY DEFECTIVE AND OBJECTIONABLE
The Governent's discovery request that is the subject of

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this motion to compel is

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procedurally defective, objectionable, confusing, unduly oppressive and burdensome, and the

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details are explained below. More importantly, although the motion only addresses Interrogatory

20 Nos. 2, 4, 5, 6 and 9, the motion and HKA's opposition must be considered in the full context of
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the entire discovery request and the Governent's unreasonable conduct.
1.

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HKA's Efforts To Meet and Confer BEFORE Serving Responses
On January 25, 2007, before responding to the Government's discovery request,

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Preliminary Status Report, and has patiently waited for the Government to remedy significant deficiencies in its document production. 2 Expert Designations were due on March 3 I, 2008. Because of the impeding deadline, on March 18, 2008 HKA only
responded to the Government's request for an enlargement of

time. It did not address the meet and confer on interrogatory response. The Government's motion now mischaracterizes HKA's March 18, 2008 letter as a refusal to engage in further discussion on the discovery.
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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

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1 counsel for HKA attempted to meet and confer with Mr. Solomson to address HKA's concerns
2 and objections. Mr. Solomson refused to engage in any meet and confer before HKA served its
3 responses. This motion to compel could possibly have been avoided if the Government agreed to

4 remedy the deficiencies in its discovery request.
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2.

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Defects and Objectives to Government's Discovery
The following are examples of some of

the problems with the Governent's discovery:
the

1. Although the discovery request seems to only contain 19 categories, but because of

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inclusion of the introductory material containing "Definitions And Instructions," and because of
the combination of unrelated topics in the same request, the discovery request really contains
multiple subparts which make the interrogatories compound, conjunctive or disjunctive, and
substantially increase the actual number of

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the interrogatories beyond the 25 permitted by RCFC.

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For example, Interrogatory NO.1 required HKA to identify ((all persons having knowledge of
facts and circumstances surrounding HKA's Complaint;)) and ((required HKA to provide the
general substance of

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the persons' knowledge,)) and ((whether that person would be called as a

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witness at trial)), and ((the general substance of

the expected testimony.)) The requested

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information is clearly compound and unrelated, therefore making this request more than one.
2. The discovery request defined "Document" to include all documents, "regardless of

whether claimed to be privileged or confidentiaL." The request also defined "Claim" to include

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"any other request for relief included in the Complaint" and therefore sought confidential information transmitted in an attorney-client communication which is protected by the attorney-

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client privilege, and also sought information given to, or obtained by, counsel in preparation for
litigation which is protected by the attorney work-product privilege.
3. The discovery request prematurely and improperly sought the names of

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witnesses to be

called at trial and the "general substance of

his expected testimony." (See Interrogatory No.1)

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Pursuant to RCFC Appendix A, Case Management Procedure, VI, Post -Discovery Proceedings,
13. Meeting of Counsel, counsel for the paries are to meet no later than 63 days before the pretrial
conference and exchange a list of names, addresses and telephone numbers of witnesses who may
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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

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1 be called at triaL. A pretrial conference has not yet been scheduled in this matter.

2 4. The discovery request prematurely and improperly sought the identification of

3 documents to be used at triaL. This was an attempt by the Governent to circumvent the

4 procedures established for disclosing trial exhibits.
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5. The Government served a single discovery request, combining both interrogatory

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requests and requests for production of documents, unnecessarily confusing and complicating the
discovery request, and causing unwarranted burden and expense on HKA3.

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C.

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THE GOVERNMENT'S COMPLAINTS ARE UNREASONABLE AND MERITLESS
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Generally speaking, the majority of

the Governent's complaints about HKA's responses

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arise as a result of interrogatory responses are phrased. Each is addressed separately below. Interrogatory No.2

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The Governent's motion concedes that "HKA's response appear to be responsive," and
that the Governent is "satisfied generally with its response to this interrogatory..." Nevertheless,

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the Governent complains that because of HKA's objections, "HKA may be declining to provide

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additional information" and therefore the Government wants "HKA (toJ confirm whether or not
there are other HKA employees that were 'responsible for the negotiation or performance' of the
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19 contract at issue." (bold added)

20 First, this interrogatory is compound and contains prohibited multiple subparts.

21 "Negotiations" of a contract are not the same as, or related to "performance" of a contract.

22 Additionally, any information regarding the prior experience of individuals identified in the
23 response is distinct and unrelated to the contract "negotiations" or "performance."

24 Second, and more importantly, HKA has responded to this interrogatory. The
25 Governent's alleged concern that "HKA may be declining to provide additional information," is

26 not a valid or legal ground for filing a motion to compeL. Also, the Government's request that
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28 3 The Government has done the same with this motion. It has combined its motion to compel with its motion for enlargement of time.
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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

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HKA "confirm" its responses is not reasonable or justifiable. The Government cites no authority
for its proposition that once responses are provided, a responding party is further obligated to
"confirm" that it fully responded to the interrogatory and that no further responses are available.

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This request is uneasonable, without merit and cannot be a valid reason for a motion. HKA
should not be required to provide further responses to Interrogatory NO.2.

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Interrogatory No.4
Again, the Governent has no real basis for moving to compel on Interrogatory NO.4.

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The motion cites HKA's responses. It then argues that "(bJecause HKA continues to assert
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objections to this interrogatory, it is unclear whether HKA's various responses are exhaustive."
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This is simply a sophomoric taunting, not a real discovery dispute.
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HKA is entitled to raise appropriate objections to the interrogatories. With this motion, the
Government attempts to force HKA to waive its reasonable and appropriate objections to
deficiently drafted interrogatories. HKA is not required to do so. In fact, the Governent cites no

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authority suggesting that a responding party cannot object, and at the same time, provide
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responses. Additionally, a motion to compel cannot be based on the Government's inability to tell
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whether "responses are exhaustive." The Government wants HKA to confirm that it has
responded to the interrogatories. As discussed above, HKA is not required to do so.
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Lastly, with this motion, the Governent attempts to turn the interrogatory into a request
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for admission. This is not reasonable, and is an example of the Governent's disregard of
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procedural rules. Also an example is the Government's unreasonable request here that HKA
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"produce all documents that HKA has used, or wil use, to support that allegation (contained in
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paragraph 150) ofHKA's complaint.J" This request seeks attorney work product, and prematurely
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asks for HKA's exhibit list. Although the Government's motion does not address documents, this
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example reflects the Governent's unreasonable conduct and overreaching with its discovery.
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Interrogatory No.5
Interrogatory NO.5 is objectionable as phrases because it incorporates the introductory

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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

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Document 25

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1 material containing "Definitions And Instructions," including the definitions of

"state in detail"

2 and "identify," both of

which include references to multiple meanings, and therefore making this

3 request confusing and compound and containing subpars. More specifically, "state in detail" is
4 defined to include and requires a description of "underlying facts," "circumstance, condition and
5 thing known to you about the subject of the request..., full identification and description of

the

6 source(s) of such facts, circumstances, conditions, and things, including, ... identification of each
7 person having knowledge of and each document containing information relating to such fact,
8 circumstance, condition or thing."

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The interrogatory also requests that HKA "Identify each specific instance..." "Identify" is
defined to have multiple meanings, depending on whether used in reference to "organization,"
"individual," "document," "source of information," or "event, meeting, discussion or telephone

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meaning of "Identify" to use for "specific instance." As a result, HKA raised appropriate
objections to this interrogatory, nevertheless it made a good faith effort at providing responses.

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The Governent now complains that "(bJecause HKA continues to assert objections to this
interrogatory, it is unclear whether HKA's various responses are exhaustive." As discussed,

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above, HKA is entitled to raise appropriate objections, and this motion is the Governent's
attempts to force HKA to waive its reasonable and appropriate objections to deficiently worded

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interrogatories. Again, a motion to compel cannot be based on the Governent's inability to tell

20 whether "responses are exhaustive."
21 The Government also complains about HKA's offer of documents in lieu of responses,

22 arguing that it is "an abuse" to "direct... (requesting party J to a mass of business records or by

23 offering to make all of the records available." In its responses, HKA did not refer to "mass of
24 business records," nor did it offer to make "all of

the records available." Instead, HKA

25 specifically referred to its "request for information, request for clarifications, request for change

26 orders, correspondence regarding same, and responses by the governent to such requests,
27 correspondence with the customer/end user, correspondence and directives regarding the contract,
28 responding party's claims." These specifically referenced documents are not all ofHKA's project
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6 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

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records, but are specific categories of documents containing the information sought.

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Lastly, the Governent argues that its request "is aimed at plaintiffs beliefs and intent
regarding factual bases of its claim... " However, as worded, the interrogatory does not require

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HKA to disclose its "beliefs and intent." The Government seeks to have the interrogatory
interpreted differently than phrased. This request is unreasonable, and is an attempt by the

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Governent to force HKA to prepare its defense. Also unreasonable is the Governent's request
in this interrogatory/document request that HKA "produce all documents that HKA has used, or

wil use, to support that allegation (contained in paragraph 15(i) of HKA's complaint. J" Once
again, this request is premature and seeks attorney work product.

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Interrogatory No.6
Interrogatory NO.6 is objectionable as phrases because it also incorporates the
introductory material containing "Definitions And Instructions," including the definitions of "state
in detail" and "identify," both of

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which include references to multiple meanings, and therefore
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making this request confusing and compound and containing subparts. More specifically, "state in
detail" is defined to include and require a description of "underlying facts," "circumstance,
condition and thing known to you about the subject of

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the request..., full identification and

description of

the source(s) of such facts, circumstances, conditions, and things, including, ...

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identification of each person having knowledge of and each document containing information
relating to such fact, circumstance, condition or thing. "

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The interrogatory also requests that HKA "Identify every such error or alleged defective

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specification..." First, the interrogatory is compound as it addresses both "error(sJ" and also
"alleged defective specifications." Second, "Identify" is defined to have multiple meanings,
depending on whether used in reference to "organization," "individual," "document," "source of

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information," or "event, meeting, discussion or telephone conversation." As drafted, the
interrogatory is unclear and requires HKA to decipher which meaning of "Identify" to use for
"every such error." If

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"identify" as to "error" was defined by HKA to include "document," it

would be required - among other things - to describe every single document reflecting errors on
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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

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1 the project and provide a "synopsis of content" of each document. If "identify" as to "alleged
2 defective specifications" was defined by HKA to include "document," it would be required-

3 among other things - to describe all ofthe project specifications and provide a "synopsis of (theJ
4 content" of each of

the specifications. If "identify" as to "error" was defined by HKA to include

5 "an event," HKA would be required to provide the "time, date and location" of each error, the
6 "circumstances of' the error, the "identity of each person who participated in the meeting,
7 discussion or telephone conversation" related to the "error," a "summary of

what was discussed"
the meeting,

8 as to the "error" and "whether any notes, minutes or other memoranda were made of

9 discussion or telephone conversation" of

the "error," and to "identify the notes, minutes, or other

10 memoranda" regarding the "error."
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the Project."

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As a result, HKA raised appropriate objections to this interrogatory, nevertheless provide

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"The plans, specifications and materials provided to HKA by the governent were not accurate, workable, correct or sufficient because they did not reflect the correct scope and requirements for weed barriers, permits, modular building, asphalt quantities, aggregate base, 18 sidewalks, anti climb fabric for the fence, water meters, traffic control, testing for sub grade and asphalt or soil testing, lockers, service conduits; requirements imposed by Imperial Irrigation 19 District; or the desires of the end user; i.e. the Border Patrol, including but not limited to the light fixtures, cameras, concrete pads, storage boxes and conduits. Additionally, the Governent failed 20 to provide the Corps of Engineers Guide Specifications for asphalt paving."
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HKA has provided an appropriate response to Interrogatory NO.6. HKA is not responsible
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for the drafting of

the deficient, inappropriate and objectionable interrogatory, nor should it be

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forced to decipher the intent and/or meaning of it. Therefore, HKA should not be required to
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provide further responses to this interrogatory.
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Interrogatory No.7
Interrogatory NO.7 is objectionable as phrases because it also incorporates the

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HKA's Opposition to Motion to Compel and Motion to Enlarge Time

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Document 25

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1 introductory material containing "Definitions And Instructions," including the definition of
2 "identify," which includes references to multiple meanings, and therefore makes this request

3 confusing and compound and containing subparts. More specifically, the interrogatory requests

4 that HKA "Identify all costs" and "Identify duplicative costs." "Identify" is defined to have
5 multiple meanings, depending on whether used in reference to "organization," "individual,"
6 "document," "source of information," or "event, meeting, discussion or telephone conversation."
7 As drafted, the interrogatory is unclear and requires HKA to decipher which meaning of "Identify"
8 to use for "costs" and "duplicative costs." Also, the interrogatory incorporates a definition of

9 "Claim" to include "any other request for relief included in the Complaint." As defined, the
1 0 request is confusing, and also seeks confidential information transmitted in an attorney-client
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communication which is protected by the attorney-client privilege, and also seeks information

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13 work-product privilege. HKA objected that the interrogatory also sought facts to be relied upon at
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14 trial, rather than facts about the case, and that it was oppressive and placed an undue burden on

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18 responded that:
"The First Amended Complaint seeks damages, including but not limited those arising 19 from the unilateral change order regarding the January 25th proposal, lights and security cameras, for unilateral change order dated November 30,2005, light, car wash water, electrical utility and

20 conduit, for the addition of scope of work due to Imperial Irrigation District, contract scope of
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22 require the opinion of expert witnesses."
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work changes, payment withholdings, extra work, including but not limited to wires and asphalt work, interest and prompt payment penalties pursuant to the contract and relevant statutes. Investigation and discovery is continuing, and to further respond to this interrogatory would

In the cover letter accompanying HKA's supplemental responses, HKA reiterated that the
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Governent "has copies ofHKA's claims - received during the project and now through the initial
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disclosure process. If interested, the US can for itself compare the items sought in HKA's claims

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with the damages sought in HKA's First Amended Complaint. HKA is not required to perform the
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governent's analysis or computation, or to prepare the Governent's defense."
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9 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

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1 The Governent obviously received HKA's claims submitted on December 13, December
2 23, December 15, December 20,2005 and February 23 and May 3, 2006. Each claim included a
3 detailed summary of each claim item, including the quantities, units, hourly rates, labor hours,
4 daily rental rates, the equipment and materials used, the unit costs and the total cost for each item

5 of claim. Governent employees presumably reviewed and analyzed each ofHKA's summaries

6 before they denied the claims, and therefore the Government knows exactly what HKA claimed as
7 part of each claim. Additionally, the Governent received copies of these claims as part of

the

8 initial disclosure, and if necessary can now review and analyze the claims once again. With this
9 motion, the Governent wants to force HKA to prepare a compilation, abstract, audit, comparison

10 or summary of all of HKA's claims. HKA currently has no such document, and the Government
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can prepare this summary as easily as can HKA. Therefore, HKA should not be forced to do the

Lastly, the motion cites to cases explaining the purpose of certified claims and argues that ¡¡""¡:::::13 .. ~'..~ -. ~::- (; i: 0;;0. 14 HKA must know whether some costs in each claim are duplicative of each other, or not being 1i~ t. Z Z ":~8
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15 sought in this case. First, the purpose of certified claims are irrelevant to this motions. Second, if
16 the Governent's logic is followed, then the Governent employees who reviewed and ultimately

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18 or not. Therefore, since the Governent already has this information, HKA should not be

19 required to incur the burden or the cost of preparing the comparison sought by the Government.
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Interrogatory No.9
As with Interrogatory No.6, Interrogatory NO.9 is also objectionable as phrased because it

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23 incorporates the introductory material containing "Definitions And Instructions," including the
24 definitions of "state in detail" and "identify," both of

which include references to multiple

25 meanings, and therefore making this request confusing and compound and containing subparts.
26 Once again, despite HKA's objections, it provided responses to this interrogatory.

27 In the cover letter accompanying HKA's supplemental responses, HKA stated that it could

28 not "respond to the issues raised regarding Interrogatory NO.9 because without further elaboration
149404.1 MeA

10 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 11 of 28

1 and clarification, HKA does not understand what the Government's concern is." The
2 Governent's motion does not elaborate. It simply states "Due to HKA's objections to this

3 interrogatory, it is unclear whether HKA's list of items or tasks that were allegedly 'beyond the
4 requirements of the contract' is exhaustive."

5 Again, HKA is entitled to raise objections and respond at the same time. The Governent
6 cites no authority requiring HKA to withdraw its objections. HKA cannot be compelled to

7 provide further responses just because the Government is "unclear" whether it received responses
8 which are "exhaustive."
9

II.

10
VJ

¡i u ;; .

HKA'S OPPOSITION TO MOTION FOR ENLARGEMENT OF TIME
11

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12

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The Governent's March 12, 2008 letter to HKA only sought a three month enlargement

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13 on the various deadlines, but the motion now asks for a 6 month enlargement on the close of non-

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14 expert discovery, 3 month enlargement on the designation of experts, a 7 month enlargement on
15 expert reports and a 6 month enlargement on close of expert discovery. Below is a chart

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o -. z'" ~ ~ _.. 0 f- ¡:~""ii 17 2008 request, HKA's response with proposed dates and the new dates proposed in the

S 0 o..~ 16 summarizing the current Court ordered deadlines, compared with the Government's March 12, .. ~~~
18

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Governent's motion:
HKA

19

9/6/07

20
21

Court Order
Initial Disclosure

Current Court Order
nla
05108/08

Approximate Dates per Government's
3/12/08 Letter

Proposed
Date in Response to

Dates in

Government
Motion

3/12/08

Letter
10/19/2007

22
23

nla
08/08/084

nla
06/05/08 06/30/08
11/07/08 12/15/08

nla
11/30/2008

Close of non-expert

discovery
Designation of experts

2/8/2008
3/31/2008

24
25

03/31/08
OS/26/08

6/31/08
08/26/085
10/14/086

6/30/2008
12/31/2008
1/31/2009

Expert reports
Close of expert discovery Including depositions

5/26/2008 7/14/2008

26
27 28

07/14/08

4 This date falls during HKA counsel's maternity leave. 5 This date falls during HKA counsel's maternity leave. 6 This date falls during HKA counsel's maternity leave.
149404.1 MeA

11

HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 12 of 28

1

A.

2
3

THE REQUESTED ENLARGEMENT OF TIME is NOT WARRNTED
The Governent argues five reasons in support of its request for a time enlargement. The

4

problems and deficiencies of each reason/argument is addressed below:
5

6 7

1.

Document Production Issues
8

9 The Governent complains that "HKA did not complete its document production. .. until
10 March 6,2008" and implies that HKA withheld and/or delayed its document production. That is
VJ

Z ..~o "7 \0 12 could have started its review and preparation at that time. On the other hand, HKA received one ~9 ~ ..
?- -. t. õ ~

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11 not so. The Governent received copies of HKA's entire project file on December 11, 2007, and

¡¡",¡::::: N 13 CD on December 11, 2007, with no indication that additional Governent documents would be ~ ?;.. '"
.. ~'..~

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14 forthcoming. On December 13,2007, HKA received from the Governent eight additional CDs.

:: -. i..'! ~ 0 ~~~ o -.~iíi'0 _.. L.~0"""" "¡:M ..
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Z :¡~..~ 15 A review of the CDs indicated numerous problems with the Government's production. By a -. ci.. u ¿,
16 December 19,2008 letter, a copy of

which is attached as Exhibit 3 to Apanian Declaration, HKA

17 attempted to meet and confer regarding the Government's production deficiencies. Specifically,

18 HKA identified the following problems:
19
1.

The Government's attempted electronic redactions were not effective because the

20 redactions disappeared when viewed and/or printed;

21

2.
3.

Non-privileged documents appeared to have been redacted;

22
23

No privilege log was provided; and
E-mail attachments had not been produced.

4.

24 HKA notified the Governent that because of the ineffective redactions, and HKA's
25 efforts to avoid improper disclosure of Government privileges, it had "ceased all efforts to access

26 information on the CDs altogether. We have sequestered all ofthe CDs and the printouts of the
27 documents so that no one can access them..." HKA also explained that the deficiencies in the

28 Governent's production were "delaying HKA's ability to access and review the produced
149404.1 MeA

12 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 13 of 28

1 documents and to prepare this case for discovery and triaL."
2 Thereafter, HKA engaged in continuous and tremendous efforts to have the Government

3 remedy its production deficiencies. During the meet and confer process, HKA realized that some,

4 but not all, of the Government's documents were Bates numbered. Counsel for the Governent
5 agreed to provide Bates stamped documents when the document production was redone to remedy
6 the previously identified deficiencies. The Government finally remedied its production

7 deficiencies in late January 2008 when it provided HKA with replacement CDs. Therefore,
8 between December 19,2007 and late January 2008, HKA did not, and could not, access any of

the

9 Governent's documents and/or prepare its case.
10
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It was not until late January - and after HKA's request regarding Bates stamping - that the

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11

Government complained about HKA's documents not being Bates numbered? HKA had all of its
previously produced documents Bates numbered, and provided replacement CDs on March 6,

.. w..~

13

20088. The Governent has had all ofHKA's documents since December 11,2008. In contrast,
because of

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14
15

the Governent's acts and/or omissions, it has prevented HKA from accessing the

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Governent's documents for almost a month and a half. Therefore, the Governent's argument
that it now needs more time because of HKA's document production is disingenuous.
2.

16
17
18

Z :i :i .. ::

f- ¡: "" "" 0 M ..

Discovery Dispute

19

The accompanying discovery motion is a smoke screen. The motion only addresses
20
concerns about five interrogatories, most, if not all are merit less. The Government's main
.21

concern seems to be an unfounded fear that "HKA may be declining to provide additional
22

information" or that "(bJecause HKA continues to assert objections to (theseJ interrogatory, it is
23

unclear whether HKA's various responses are exhaustive." The Governent's concerns are not

24

legitimate grounds for a motion to compeL. An in depth analysis of the Governent's motion to
25

compel and the motion for enlargement of time, along with the Governent's refusal to allow
26

HKA until April 4, 2008 to fuher respond, suggests that the motion to compel is really brought to
27
7 RCFC 26(a)(l)(B) does not require documents to be Bates numbered.

28

8 HKA Counsel had a death in her family in February, and was out of

the offce at times.

149404.1 MeA

13 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 14 of 28

1

justify the Governent's request for the time enlargemenë.
3.

2
3

Initial Disclosure
The sufficiency ofHKA's initial disclosure is not the subject of

4
5

this motion, or before the
I.

Court at this time. The Governent has not met and conferred with HKA regarding HKA's initial

6

disclosure, nor has it filed a motion to compel on HKA's initial disclosure. Any discussion
regarding HKA's initial disclosure is beyond this motion, and simply another attempt to attack

I

7
8

HKA and confuse the issues. As a result, HKA is forced to clarify:
The Governent complains that HKA's initial disclosure identifies approximately 130

9
10
VJ

individuals likely to have discoverable information that plaintiff may use to support its claims or
defenses. RCFC 26(a)(I) states in part"... a part must, without awaiting a discovery request,
provide to other parties: (A) the name and, if

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known, the address and telephone number of each

13

individual likely to have discoverable information that the disclosing pary may use to support its
claims or defenses, unless solely for impeachment, identifying the subjects of

14

the information."

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The rule also states "A party must make its initial disclosures based on the information then
reasonably available to it and is not excused from making its disclosures because it has not fully
completed its investigation of the case." At the time HKA prepared its initial disclosure, it
identified all of

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16 17
18

f- ~õ""~ ¡: M "" Z :i :i .. ::

the individuals who would likely have information about the project and that HKA
I

19

could use to support its claim. These people included Governent offcials, HKA employees, and
HKA subcontractors who worked on and had knowledge of

20
21

what transpired on the project. HKA
these individuals with knowledge of

did nothing wrong by identifying all of

the project. Had

22
23

HKA not provided a complete initial disclosure, the Government would be complaining that HKA
failed to comply with the rules. Since HKA's initial disclosure is not the subject of

this motion to

24

compel, any issue or alleged deficiencies with the initial disclosure are irrelevant and cannot be the

25 basis for a time enlargement.
26
27 9 If

the Government was truly interested in further responses from HKA, it would afford HKA the opportunity to respond to the March 12th letter until April 4, 2008. The April 4, 2008 deadline would definitely be before this motion
enlargement of time to avoid the March 31, 2008 expert designation deadline.
149404.1 MeA

28 was heard and ruled on. Instead, it appears that the Government rushed to fie this motion to compel/motion for

14 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

i

I.

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 15 of 28

1

4.

2

Expert on Damages
3

4

The Government complains that it "learned for the first time, in HKA's discovery

5 responses, that HKA intends to present expert testimony on damages," and therefore the

6 Governent requires additional time to retain damages expert. First, this statement is not true.
7 The Governent has had notice of HKA's intent regarding an expert on damages as early as
8 October 19,2007 because HKA's initial disclosure clearly and expressly states:
9 "Hernandez Kroone And Associates' calculation of damages is subject to expert

10 investigation, evaluation and analysis and this initial disclosure is being provided without

¡i u 11 prejudice to its right to amend, alter or change such calculations." ;; . ¡i Z i: .. ~ ~ or-o Second, the Court's scheduling order required designation of experts on March 31, 2008. Z..~0~912 ?- -.~õ~ ¡¡ ",1-::::
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13 The RCFC does not require HKA to make expert disclosures prior to the Court's March 31, 2008
14 deadline. Therefore the Governent was not entitled to HKA's expert information prior to that
15 time. In fact, HKA's initial disclosure and interrogatory responses gave the Government a heads-

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SO~¡g~ 16 up regarding HKA's intent to use a damages expert, and the Governent's request for additional .. o..~ o -. z'" ~ L. ~õ~~ 17 time is not warranted. "¡:M "" Z :i :i .. 5. 18 ::
19

~ .. :iz~

20
21

Government's Counsel's Unavailability

The Governent's motion states that Counsel for the Governent wil be out of the office
20, 2008 and July 14-23,2008 and agency counsel unavailable April

22 the week of April

6-13,

23 2008. The motion does not explain why or how an unavailability of counsel for three weeks

24 justifies an enlargement of time by three to seven months.
25

B.

26
27

THE GOVERNMENT'S MOTION LACKS CREDIBILITY

28 The Governent's motion attacks HKA and argues "it strains credulity that either HKA's
149404.1 MeA

15 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 16 of 28

1 or the Governent's expert wil require more than four months to draft a report; yet, that is
2 precisely what HKA has proposed." It is true that HKA proposed a June 30, 2008 deadline for
3 expert designations and a November 7,2008 deadline for expert reports. These dates were
4 proposed because they fall before and after HKA's counsel's maternity leave.
5 What is not clear however, is why the Governent would propose a six month spread

6 between expert designation and expert reports when it so vehemently criticizes HKA for

7 proposing a four month spread. The motion seeks to have expert designation on June 30, 2008,
8 yet expert reports due six months later, on December 31,200810.
9

c.
THE GOVERNMENT'S POSTURING IS UNREASONABLE

10
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The Governent's motion argues "HKA can offer no principled bases for asking this Court
I i

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13 to extend the overall discovery schedule by five months, while insisting on only short extensions

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14 of specific deadlines contained therein."
First, HKA is not asking this Court to extend any of the deadlines. It is the Government

Z :¡ ~.. ~ 15

SO~¡g~ 16 that is seeking the enlargement. With the exception of the March 31, 2008 expert designation .. o..~ o -. z'" ~ L. ~õ~~ the Governent's motion, HKA is wiling to comply with "¡:M "" Z :i :i .. 18 the current Court ordered deadlines. ::
17 deadline which became moot because of

:: -. i~'!

19 Second, although HKA attempted to again accommodate the Governent's scheduling

20 needs, it simply would not agree to any dates within the time HKA's counsel is planned to be on
21 maternity leave. Apparently, unavailability of counsel due to maternity leave does not fall within
22 the Government's definition of a "principled basis."
23

24
25

CONCLUSION ON MOTION TO COMPEL

26 Plaintiff HKA respectfully requests that Defendant's motion to compel further responses be
27 denied in its entirety.
28 10 Expert and counsel wil most probably be unavailable on December 31,2008 due to offce closures for the holidays.
149404.1 MeA

16 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 17 of 28

1

2

CONCLUSION ON MOTION FOR ENLARGEMENT OF TIME

3 Plaintiff HKA respectfully requests that Defendant's motion for enlargement of time be
4 denied and a new date be set for designation of experts. Alternatively, if

the motion is granted

5 HKA requests that the deadlines be scheduled so that deadlines between July 1,2008 and October
6 3,2008 (maternity leave) and during December 24,2009 and January 2, 2009 (holidays) be

7 avoided.
8

9 DATED: April e 2008
10
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rence P. u ka SEN 103752 HUNT ORTMANN PALFFY NIEVES LUBKA DARLING & MAH, INC.

.~

30l North Lake Avenue, 7th Floor Pasadena, California 91101-1807
Phone: (626) 440-5200

Fax: (626) 796-0l07

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Attorney for Plaintiff Hernandez, Kroone & Associates

i .. 18
19

Counsel:

Joseph J. Pertrilo, DC Bar No. 184986 20 PERTRILLO & POWELL, P.L.L.C. 5335 Wisconsin Avenue, N.W., Suite 440
21 Washington, D.C. 20015

Phone: (202) 887-4848
22 Fax: (202) 478-1656

23

24
25

26
27
28
149404.1 MeA

17 HKA's Opposition to Motion to Compel and Motion to Enlarge Time

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 18 of 28

1

2
3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

HERNANDEZ, KROONE AND
4 ASSOCIATES, INC.,
5

CASE NO. 07-165 C
**********

Plaintiff,

The Hon. Judge James F. Merow
6

vs.

Action Filed:
7 THE UNITED STATES,
8

March 13, 2007

Defendant.

9
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10
11

12
13

MILENE C. APANIAN DECLARATION IN SUPPORT OF HKA'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL AND MOTION FOR ENLARGEMENT OF TIME
I, Milene C. Apanian, being duly sworn, state as follows:

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14
15

1. My name is Milene Chraghchian Apanian. I am over 18 years of age. I am an
associate attorney with Hunt Ortmann Palffy Nieves Lubka Darling & Mah, Inc., attorneys of
record for Hernandez Kroone And Associates, Inc. ("HKA") in this matter.
2. I am fully competent to make this declaration and I have personal knowledge of

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o -.~iíi'0 ~ _..

16
17
18

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the

facts stated in this affidavit. To my knowledge, all of

the facts stated in this declaration are true

19

and correct. If called as a witness, I could and would competently testify to all facts within my

20
21

personal knowledge except where stated upon information and belief. I make this declaration in
support ofHKA's Opposition to Defendant's Motion to Compel and Motion For Enlargement of

22 Time.

23

3.

I am currently pregnant with my second child and anticipate being on maternity

24 leave from July to mid October. During the last few months, I have had pregnancy related
25 complications which have caused me to be out of the office at times.
26
4.
The discovery request which is the subject of

this motion to compel combines

27 interrogatory requests and request for production of documents, and contains objectionable
28

149913.1 MeA 1

Apanian Declaration In Support of HKA's Opposition To Motion To Compel and Motion For Enlargement

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 19 of 28

1

interrogatory requests and production request On January 25, 2007, before HKA's responses to
the Governent's discovery request were due, I contacted Mr. Solomson and requested a two

2
3

week time extension to respond. During that phone conversation, I notified Mr. Solomson that

4
5

HKA thought that the discovery request, and the interrogatories and demand for production of

documents as phrases were procedurally defective and objectionable. I attempted to meet and
confer with Mr. Solomson, hoping that we could resolve and/or remedy some of

6 7
8

the deficiencies

before HKA provided responses. Mr. Solomson refused to meet and confer and requested that

HKA address its concerns through objections in its discovery responses. As a result HKA

9

provides responses to the Governent's discovery, including appropriate objections. Thereafter,
Mr. Solomson sent a meet and confer letter, complaining about HKA's responses and objections.

10
VJ

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11

HKA provided supplemental responses, along with a cover letter explaining HKA's position.
5. On or about February 25,2008, I received a call from Mr. Solomson wanting to

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13

discuss HKA's supplemental discovery responses. We had a brief discussion, and Mr. Solomson

generally discussed the Governent's concerns regarding HKA's responses. We specifically

-. :iz~ o -.~iíi'0 ~ _..
~O~¡g~
Z :i :i .. ::

Z - ~..N 15 -. .. ~ 25 v; ci.. 0

discussed two interrogatories. It was apparent to me that it was not possible to address the

16

Governent's concerns over the phone because Mr. Solomson kept insisting that we could not
reach an agreement. I requested that if the Government stil had any outstanding issues regarding
HKA's supplemental responses, that it provide those concerns in writing so HKA could evaluate

f- ¡: M .. 17 0"" ""

18

19

those concerns and respond accordingly. Mr. Solomson agreed to discuss with his higher ups the

20
21

Governent's obligations to further meet and confer and to contact me if/when the Government
made a decision regarding its desire to file a motion to compeL. I confirmed this agreement with
an e-mail of the same date and reiterated HKA's position that any outstanding concerns by the
Governent should be clearly identified in writing, and HKA given an opportunity to respond

22
23

24 prior to fiing any motion to compeL.

25

6.

Between the February 25, 2008 phone call and March 7, 2008 I did not hear back

26 from Mr. Solomson regarding the discovery.
27
28
7.

By an e-mail dated March 7, 2008, I notified Mr. Solomson that I would be out of

149913.1 MeA 2

Apanian Declaration In Support of HKA's Opposition To Motion To Compel and Motion For Enlargement

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 20 of 28

1 the office the week of March 10, 2008 due to medical related leave and would not have access to

2 any e-mail or regular maiL. I specifically requested the professional courtesy from Mr. Solomson
3 that the Government not serve any papers during this time. Attached hereto as Exhibit 1 is a true
4 and correct copy of

my March 7,2008 e-maiL. I know Mr. Solomson received my March 7, 2008

5 e-mail because I did not receive any mail delivery error messages, and subsequent correspondence
6 from Mr. Solomson confirms receipt of

that e-maiL.

7

8.

I was out of

the office the entire week of

March 10,2008. When I returned to the

8 office and checked my e-mails, I realized that Mr. Solomson had refused my requested courtesy.

9 In fact, by a March 12,2008 e-mail, he had served HKA with a letter addressing two unrelated
10 issues: (a) a meet and confer on HKA's discovery responses, and (b) the Government's request
VJ

Z ..~o '" \0 12 HKA two weeks to respond. ~ .. ~ 9
?- -. t. õ ~

¡i u 11 that HKA agree to a three month enlargement to the court established deadlines. This letter gave ;; . ¡i ¡i or- .. Z i: 0 ~
I was again mostly out of the offce the week of

¡¡""¡:::::13 ¡¡ ?;.. '" N 9. March 1 ih. I was in the offce on .. ~'..~ -. ~::- (; i: 0;;0. 14 March 18th. Since expert designations were due on March 31, 2008, and since I had not had the 1i ~ t. Z Z ":~8

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15 chance to investigate or respond to the discovery issues in Mr. Solomson's request, I decided to

~O~¡g~ 16 respond to the portion of Mr. Solomson's March 12, 2008 letter addressing the request for a time

o -.~iíi'0 ~ _..

f- ¡:~""ii 17 enlargement, including expert designations. By a March 18th letter, I proposed alternative dates Z :i :i .. 18 for the time enlargement and explained HKA would not agree to any deadlines that fell during the ::
19 time I was on maternity leave. Three of the deadlines proposed by the Government fell within the

20 time I was on maternity leave. My intention was to address the discovery separately and at a later
21 date when I had an opportunity to evaluate the March 12,2008 letter. Nothing in my March 18th

22 letter states that HKA is refusing to respond to the Governent's discovery issues. It simply states

23 that Mr. Solomson had mischaracterized the facts.
24
10.

Since I was mostly out of the office the week of March 17, I did not have a chance

25 to respond to Mr. Solomson's letter regarding the discovery. A day before the Government's
26 established deadline for HKA to respond by a March 25,2008 e-mail, I notified Mr. Solomson
27 that since I had been out of

the office, I "had not had the chance to respond to (hisJ March 12,

28

149913.1 MeA 3

Apanian Declaration In Support of HKA's Opposition To Motion To Compel and Motion For Enlargement

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 21 of 28

1 2008" discovery related meet and confer letter. I specifically stated that I anticipated that I
2 would have HKA's response to the March 12,2008 letter "before April

4, 2008," Attached

3 hereto as Exhibit 2 is a true and correct copy of my e-maiL. I know Mr. Solomson received this e-

4 mail because I did not receive any mail delivery error messages, and the motion concedes receipt
5 of this e-maiL.

6

11.

Since Mr. Solomson had not respond to my March 18th letter regarding the time

7 enlargement, and the March 31, 2008 expert designation deadline was fast approaching, Ie-mailed

8 Mr. Solomson on March 25, 2008 requesting that he let me know what his intentions were
9 regarding the upcoming expert designation deadline. Mr. Solomson responded on March 26,
10 2008, attaching a copy of the Governent's fied motion to compel and motion for enlargement of
VJ

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GOVERNMENT'S DOCUMENT PRODUCTION
12.

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I received one CD on December 1 1, 2007, with no indication that additional

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14 Government documents would be forthcoming. On December 13,2007, I received from the

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15 Government eight additional CDs. I review of the Governent's CDs and noted numerous and
16 significant problems with the Government's production. Most importantly, I noticed that the

L.¡:M "" 17 Governent had not properly redacted its electronic documents. The redactions appeared to be ¡- ~õ~~ Z :i :i .. 18 simple blacked out boxes which disappeared when viewed and/or printed. Realizing the ::
19 implications of reviewing privileged and confidential information from the opposition, I
20 immediately stopped my review of these documents and information. I had all of

the CDs and

21 printouts of the documents sequestered so no one could access them. I immediately sent a meet
22 and confer letter to Mr. Solomson, identifying in detail the problems and deficiencies in the
23 Governent's production, including the lack of privilege log and missing attachments to all of

the

24 e-mails. A true and correct copy of my December 19, 2007 letter is attached hereto as Exhibit 3.
25
13.

Between December 19,2007 through the end of January 2008, I had numerous

26 telephone conversations and some e-mail correspondence with Mr. Solomson regarding the

27 Governent's production. All along, the Government knew that HKA was being delayed in its

28

149913.1 MeA 4

Apanian Declaration In Support ofHKA's Opposition To Motion To Compel and Motion For Enlargement
i'

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 22 of 28

1

trial preparation. During these discussions, it also became evident that some, but not all of the

2
3

Governent's documents had been Bates Stamped. Mr. Solomson agreed to Bates Stamp the
documents when he provided CDs replacing the previously produced documents.
14. It was not until

4
5

late January - and after HKA's request regarding Bates stamping by

the Governent - that the Mr. Solomson complained about HKA's documents not being Bates

6 7
8

numbered. After Mr. Solomson's request, I had all of HKA's previously produced documents

Bates numbered, and provided replacement CDs on March 6, 2008. The Bates stamping did not
prevent the Governent from accessing or using HKA's documents to prepare for triaL. (In

9

January and February, I had a very sick family member who ultimately passed away)

10
VJ

¡i u ;; .

EXPERT ISSUES
11

Z ~o.. ~ '" 12 õ :: "7

¡i ~ or-o zi: .. ~

15. The Governent's motion complains that it "learned for the first time, in HKA's

?- ::I-:::: -.~õ~ ¡¡ ¡¡ .."'N .. ~'..~ -. ~::- (;
Z Z ":~8

13

discovery responses, that HKA intends to present expert testimony on damages," and therefore the

i: 1i ~ t.

0;;0.

14
15

Governent requires additional time to retain damages expert. However, the Government has had
notice ofHKA's intent regarding an expert on damages as early as October 19,2007 because
HKA's initial disclosure clearly and expressly states:
"Hernandez Kroone And Associates' calculation of damages is subject to expert

Z :¡~..~

:: -. i.¿! ~ 0 ~~~ o -.~iíi'0 ~ _..
Z :i :i .. ::

-. ci .. u ¿,

16

f- ¡: M .. 17 0"" ""

18 19

investigation, evaluation and analysis and this initial disclosure is being provided without

prejudice to its right to amend, alter or change such calculations."

20
21

I declare under penalty of perjury under the laws of the State of California that the

22 foregoing is true and correct.
23

Executed April 14, 2008, at Pasadeua Californa. ~

24
25

MILENE C. A IAN

~

26 27
28

149913.1 MeA 5

Apanian Declaration In Support of HKA's Opposition To Motion To Compel and Motion For Enlargement

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 23 of 28

Milene C. Apanian
From: Milene C. Apanian
Sent: Friday, March 07, 2008 6:11 PM

To: 'Solomson, Matthew (CIV'
Subject: HKA v. US

Matt:

I will be out of the offce next week on medical related leave. I should be back at the offce on March 17th. I will not have access to e-mail or regular mail, so please do not serve any papers during this time. I appreciate your understanding and professional courtesy.

:Mí(ene C. .Jyanían
Hunt Ortmann Palff Nieves Lubka Darling & Mah, Inc. 301 North Lake Avenue 7th Floor Pasadena, CA 91101-1807 Phone: (626) 440-5200

Fax: (626) 796-0107
E-mail: apanian§huntortmann.com Web: www.huntortmann.com

ConMntífíty Notice: The ínformatíon contaíneá ín thís efectroníc e-maí( aná any
accomyanyíng attachment(s) ís íntenáeá on(y for the use of the íntenáeá recíyíent aná may 6e

confíáentía( aná/ or yríví(egeá. If any reaáer of thís communícatíon ís not the íntenáeá recíyíent, unauthorízeá use, dìsdosure or coyyíng ís stríct(y yrohí6íteá, aná may 6e un(awfuC If you have receíveá thís communícatíon ín error, y(ease ímmedìatefy notify the senáer 6y return e-maí( aná áefete the orígína( message aná a(( coyíes from your system. Thank you.
Pursuant to ayyfíca6(e feáera( regu(atíons, we are requíreá to ínform you that any aávíce

contaíneá ín thís communícatíon ís not íntendëá to 6e useá nor can ít 6e useá for yuryoses of (1) avoídìng tax yena(tíes or (2) yromotíng, marketíng or recommendìng to another yarty any

transactíon or matter aááresseá a6ove.

r~

t:.
i:.

4/14/2008

EXHIBIT .4 1"

Case 1:07-cv-00165-JFM

Document 25

Filed 04/14/2008

Page 24 of 28

Milene C. Apanian
From: Milene C. Apanian
Sent: Tuesday, March 25, 20084:10 PM

To: 'Solomson, Matthew (CIV)'
Subject: HKA v. US

Mr. Solomson:

I have received your March 12, 2008 letter regarding US's discovery, despite my March 7th e-mail notifying you that I would be out of the office the entire week of March 10 due to medical issues, and request for the professional courtesy of not serving any papers during that time.
I was also out of the office most of last week and therefore have not had a chance to respond to your March 12,
2008. i anticipate that i will have HKA's response to your March 12,2008 letter before April

4, 2008.

:Mí(ene C. .Jyanían
Hunt Ortmann Palff Nieves Lubka Darling & Mah, Inc. 301 North Lake Avenue 7th Floor Pasadena, CA 91101-1807 Phone: (626) 440-5200 Fax: (626) 796-0107 E-mail: apanian(§huntortmann.com Web: www.huntortmann.com

Con.fntífíty Notice: The ínformatíon contaíneá ín thís efectroníc e-maí( aná any

accomyanyíng attachment(s) ís íntenáeá on(y for the use of the íntenáeá recíyíent aná may 6e

confíáentía( aná/ or yríví(egeá. If any reaáer of thís communícatíon ís not the íntenáeá recíyíent, unauthorízeá use, dìsdosure or coyyíng ís stríct(y yrohí6íteá, aná may 6e un(awful: If you have receíveá thís communícatíon ín error, y(ease ímmedìatefy notify the senáer 6y return e-maí( aná áefete the orígína( message aná a(( coyíes from your system. Thanfi you.
Pursuant to ayyfíca6(e feáera( regu(atíons, we are requíreá to ínform you that any aávíce contaíneá ín thís communícatíon ís not íntenáeá to 6e useá nor can ít 6e useá for yuryoses of (i) avoíd1ng tax yena(tíes or (2) yromotíng, marfietíng or recommendìng to another yarty any
transactíon or matter aááresseá a6ove.

I.

4/9/2008

EX H I BIT .ff :L ti

Case 1:07-cv-00165-JFM ;"
\

Document 25

Filed 04/14/2008

Milene 'c. Apanian
From: Sent:
To:
Milene C. Apanian Wednesday, December 19, 2007 3:10 PM 'Solomson, Matthew (CIV)' FW: Solomson Letter.PDF

l\k-A v us

Page 25 of 28

Subject:
Mr. Solomson:

Please see attached letter.

Solomson
Letter.PDF (275 KB)

:M í(ene C. .Jyanían
Hunt Ortmann Palffy Nieves Lubka Darling & Mah, Inc. 301 North Lake Avenue
7th Floor

Pasadena, CA 91101-1807 Phone: (626) 440-5200 Fax: (626) 796-0107 E-mail: apanian(§huntortmann.com

Web: ww.huntortmann.com

Confidentiality Notice: The information contained in this electronic e-mail and any accompanying
attachment(s) is intended only for the use of the intended recipient and may be confidential and/or

privileged. If any reader of this communication is not the intended recipient, unauthorized use,
disclosure or copying is strictly prohibited, and may be unlawfuL. If you have received this communication in error, please immediately notify the sender by return e-mail and delete the original message and all copies from your system. Thank you. Pursuant to applicable federal regulations, we are required to inform you that any advice contained in this communication is not intended to be used nor can it be used for purposes of: (1) avoiding tax penalties or (2) promoting, marketing or recommending to another party any transaction or matter
addressed above.

i

EXHIBIT

, !3"

Case 1:07-cv-00165-JFM

(

Document 25

Filed 04/14/2008
(

Page 26 of 28
;l1

MILENE C. APANIAN
E-maìl: apanian(!hlU1tortann.com

Hunt

3291.002

ltunt
Attorneys At Law

Ortmann

nn

Palffy

Nieves
Lubka

Darling
&

Mah,

Inc.

December

19, 2007

VIA E-MAIL AND FACSIMILE (202) 514-8624
Matthew H. Solomson
UnitedStates Department ofJustice Classification Uriit, .8th Flöor

1100L Street, N:W. Washington, D.C. 20530

Re: HKAv. US
Dear Mr. Solomson:
I received the one CD delivered to our office on December 11 t\ and the 8 CDs delivered to our
offce on December 13th. This letter is HKA's attemptto meet and

confer on US' production.

It has come to my attention accessing the documents on

that your the

attempted

redactions

may not be effective. I began

looking attheCD.marked "Joe Flynn e-mails." I opened the CD file entitled '''Joe Flynme-mails,privileged:deleted:" Based upon your description the CD fie, I assumed thatprivileged documents of had. been removed from the production. When I accessed the documents, I came across blacked out blocks on a number of documents. When I printed the first 1 o pages, I realized that the:blacked out blocks which appeared on the
CDs by first electronic page 4 did not appear on the hardcopy. Attached is acopy ofthe printout of

page 4.

information which appears to have been blacked out from the electronic copy we cannot determine what, if anything, you intended to redact, and on what grounds;ifany, we request that a privilege log be provided and describe
At first glance, the does not seem to be.,privm~ged:at alL Since

the information you seek to withhold from production.

for your privilege log and clarification, we have taken the following ceased all efforts to access information on the CDs altogether. We have sequestered all of the CDs and the printouts of the documents so that no one can access them. Also, note that we have not uploaded any of the CDs,onour computer system or shared the information with our client, witnesses or ex.perts. In face, I alone have accessed Joe Flynn's e-mail CD, our technical support staff accessed the first CD solely to make arrangements for printing the documents.
While HKA waits precautionary step: We have

129317.1 MCA329i.002

301 North Lake Avenue, 7th Floor. Pasadena, CA 91101-5118 . Voice: 626-440-5200 . Fax: 626-796-0107 . www.huntoriann.com

I'

Case 1:07-cv-00165-JFM (

Document 25

Filed 04/14/2008
("

Page 27 of 28

Matthew R. Solomson
U nitedStates Deparment .0fJ ustice December i 9,2007
Page 2

Furthermore, as a

result

of my

brief review of the Joe Flynn' CD

it

appears that many e-mails
produce all

refer to or incliide attachments which have not yet been produced. Please

attachments referenced in all of thee-mails.

As you can imagine, having to wait for the privilege log and your clarificatiCm on the blacked out portions of the documents is delayingHKA's ability to access and review the produced documents and to prepare this case for discovery and triaL. This delay could significantly jeopardizing HKA's ability to prosecute this case. Therefore, we request that the

privilege log,

any clarifications, and all ofthe additional documents be produced