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

Case 1:06-cv-00146-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) TETRA TECH EC, INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

Fed. Cl. No. 06-146C (Judge Wheeler)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO MODIFY SCHEDULING ORDER Plaintiff Tetra Tech EC, Inc. ("Tetra Tech"), by its counsel, pursuant to Rules 7 and 37(b)(2) of the United States Court of Federal Claims ("RCFC") and the Court's October 13, 2006 Discovery Order, hereby files its opposition to the second request by the Government to extend the Court's August 10, 2006 Scheduling Order. I. INTRODUCTION The Government has not shown good cause for granting its motion. The sole basis for the motion is that counsel for the Government has received a recent assignment to a bid protest case that would conflict with Government counsel's ability to complete fact depositions in accordance with the Order that the Court issued in response to the Government's March 21, 2007 motion to extend the date for completion of fact witness depositions. The Government claimed that in order to allow sufficient time to evaluate a settlement proposal submitted by Tetra Tech on March 8, 2007, the fact witness deposition date should be extended for a month. Tetra Tech reluctantly agreed not to oppose that motion only because of the Government's representation that it needed

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this additional time and the expectation of a good faith, substantive response. Since then, the Government has provided no substantive response to Tetra Tech's proposal. The Government's eleventh hour request to postpone the completion of discovery must be considered in the context of the Government's repeated delays and complete inattention to this case for more than a year, greatly increasing Tetra Tech's legal costs and impacting the timely prosecution of this case. Since the inception of this case, the Government has elected to conduct no discovery whatsoever. With no document discovery, no interrogatories and no depositions for more than a year, the Government now requests that the Court once again extend the deadline for fact witness depositions, even though the Court has made it crystal clear that it would not tolerate dilatory tactics by the Government. In its Scheduling Order of August 10, 2007, the Court advised the parties that its March 30, 2007 discovery cut off date would be extended only for "exceptional or unforeseen circumstances." When the Government continued its delaying tactics in responding to Tetra Tech's discovery requests, Tetra Tech sought the Court's intervention. Accordingly, in its Discovery Order of October 13, 2006, the Court cautioned the Government that "the Court is concerned that the Government is not making sufficient progress in producing requested documents to Plaintiff" and that the Government's failure to meet the Court's deadlines would result in appropriate sanctions under RCFC 37. Given this history, the Government's motion should be flatly rejected. Any constraints on Government counsel's time were not caused by a recent assignment to a bid protest case, but instead by the Government's failure to proceed with any discovery for more than a year. The Government should not be saved from the position that it knowingly placed itself. 2

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For its part, Tetra Tech should be permitted to complete the discovery that it has already initiated (i.e, the completion of Rule 30(b)(6) depositions and outstanding document requests). This remaining discovery should have, and would have, been completed before the Court's March 30, 2007 discovery deadline, but for the fact that the Government's Rule 30(b)(6) deponents were not prepared to fully address some of the issues identified by Tetra Tech in its deposition notice. The outstanding document requests have languished since July 2006 and are still outstanding. Because the remaining Tetra Tech discovery involves only the completion of previously initiated discovery, the Court's discovery schedule would require no further modification to accommodate the remaining discovery by Tetra Tech. However, under no circumstances should the Government be rewarded for its delays and inattention by extending the discovery schedule to allow the Government to initiate discovery that it should have initiated many months ago. II. STATEMENT OF FACTS 1. Tetra Tech filed its complaint on February 24, 2006. From February 24, 2006 to

the present date, the Government has propounded no written discovery (no interrogatories, no document requests, no requests for admissions), deposed no one, issued no notices of deposition, made no expert disclosures, and served no expert reports. 2. The Government filed its answer on May 30, 2006. The parties filed their Initial

Joint Preliminary Status Report on July 21, 2006. 3. 4. On July 24, 2006, Tetra Tech filed its Requests for Production of Documents. In its Scheduling Order dated August 10, 2006, the Court ordered Initial

Disclosures by September 1, 2006 and completion of all discovery by March 30, 2007. The

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Court's Order stated that its March 30, 2007 discovery cut off date would be extended only for "exceptional or unforeseen circumstances." 5. Both the August 23, 2006 due date for a response to Tetra Tech's Request for

Production of Documents and the September 1, 2006 due date for Initial Disclosures passed without compliance by the Government and without any explanation for its non-compliance. Tetra Tech timely filed its Initial Disclosures on September 1, 2006. 6. At Tetra Tech's request, the Court held a conference call with counsel on

September 29, 2006 regarding Tetra Tech's concerns over the Government's failure to meet its discovery obligations. During that conference, the Government was unable to provide a schedule by which it would comply with Tetra Tech's Request for Production of Documents. The Government cited delays of a personal nature related to agency counsel. 7. On October 13, 2006, the Court held a second conference call with counsel for the

parties to discuss the status of "Defendant's compliance with the Court's document production schedule." As a result of that conference, the Court issued a Discovery Order on October 13, 2006, requiring the Government to "complete document production within 30 days, on or before November 13, 2006." The Court cautioned the Government that "the Court is concerned that the Government is not making sufficient progress in producing requested documents to Plaintiff" and that the Government's failure to meet the Court's deadlines would result in appropriate sanctions under RCFC 37 8. By email dated October 17, 2006, Tetra Tech requested the Government to

"[p]lease advise as soon as possible, if there are any issues that require input from us in order to meet the November 13, 2006 deadline." Tetra Tech heard nothing from the Government prior to the November 13, 2006 deadline.

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9.

On November 14, 2006, the Government provided its Initial Disclosures and five

(5) CDs with data. In its Initial Disclosures, the Government advised that a significant volume of documents had not been produced as required by the Court's October 13, 2006 Order. More specifically, the Government stated as follows: The contract file is located at 4820 University Sq., Huntsville, Alabama. Some documents relating to the contract are located at 10 South Howard St., Room 10000H, Baltimore, Maryland. Substantial portions of the contract file are being produced in connection with plaintiff's request for production of documents; any portions not produced will be made available for inspection and copying, subject to applicable privileges. (Emphasis added) As of November 14, 2006, the Government had not provided a written response to Tetra Tech's July 24, 2006 Request for Production of Documents. 10. As of November 14, 2006, the records that the Government had not produced

included: (a) the Independent Government Estimate (IGE) that formed the basis of the award of the Task Order 006 to Tetra Tech, (b) the estimate and supporting database that formed the basis of the $341,482.23 amount in the contracting officer's final decision from which Tetra Tech appealed, (c) documents withheld as being subject to review only under a protective order, and (d) the working files for modifications issued under the Task Order, including the working file for Modification 03. 11. Tetra Tech received written responses to its July 24, 2006 Request for Production

of Documents on December 8, 2006, along with the estimate and 850 page supporting database that formed the basis of the $341,482.23 amount in the contracting officer's final decision. Tetra Tech received the IGE on December 13, 2006. The working files for modifications remained in Huntsville with other records that the Government required that Tetra Tech review on site subject to a protective order.

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12.

The Court issued the Protective Order, in response to the parties' December 22,

2007 Joint Motion for a Protective Order, on January 3, 2007. Tetra Tech conducted the on-site document review in Huntsville on January 22 and 23, 2007. On January 25, 2007, while in Huntsville for the document review, Tetra Tech conducted a deposition of a Government fact witness. 13. On January 22, 2007, Tetra Tech served the Government with a Notice of

Deposition, pursuant to RCFC 30(b)(6), which included an Exhibit A setting forth the subjects for which the Government was required to designate persons to testify. 14. Counsel for Tetra Tech returned to Huntsville to conduct depositions on February

13 to16, 2007 pursuant to Tetra Tech's Rule 30(b)(6) notice. The Government designated: (1) Mr. Slovak regarding the database for which he previously had insufficient knowledge to offer factual testimony, (b) Mr. Adams regarding the IGE and the "40 anomalies per acre" assumption, (c) Dr. Bob Selfridge regarding geophysical data, and (d) Brendan Slater regarding the Government estimate in support of the $341,482.23 amount in the contracting officer's final decision. 15. As the Government has admitted, the Rule 30(b)(6) witnesses it designated were

unprepared to fully address all of the issues identified by Tetra Tech in its deposition notice. 16. By motion filed on March 21, 2007, the Government requested the Court to

modify the scheduling order to "enlarge the period for conducting fact discovery by 30 days" and advised that the "parties do not intend to issue new interrogatories, requests for production, or written requests for admission." In its motion, the Government further advised that the request was being "made in order to provide the parties additional time in which to discuss settlement"

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because Tetra Tech had made an offer of settlement on March 8, 2007. For this reason and this reason alone, Tetra Tech did not oppose the Government's motion. 17. The Court granted the motion on March 26, 2007 by Docket Report Order stating

that, "Defendants unopposed motion to modify the schedule for completion of fact discovery is hereby GRANTED. The parties shall complete fact discovery on or before April 30, 2007." 18. To date, the Government has not responded to Tetra Tech's offer of settlement,

other than to state that the matter was under review. 19. By letter to Government counsel dated April 20, 2007, counsel for Tetra Tech set

forth a schedule for depositions during April 24-27, 2007, listed Rule 30(b)(6) subjects still to be addressed by Government deponents, and listed documents responsive to Tetra Tech's July 24, 2006 Request for Production that still had not been produced, including the Government's privilege log. 20. After receipt of Tetra Tech's letter on April 20, 2007, counsel for the Government

advised Tetra Tech on the same day that the previously scheduled depositions for the week of April 23, 2007 were cancelled. Exhibit 1. 21. Tetra Tech has incurred significant legal fees and expenses seeking to obtain

discovery in the face of the Government delays and inattention to this case. Tetra Tech has worked to minimize the involvement of the Court in accordance with the goals of RCFC, Appendix A, ¶ 3.(c) to pursue "informal discovery", "cooperate" and make "voluntary disclosures through informal discovery". In addition to daily email messages and phone calls, Tetra Tech has routinely generated letters setting forth deficiencies in the Government's discovery responses including letters to the Government dated as follows: September 7, 2006 (2 pages) November 30, 2006 (3 pages) November 20, 2006 (4 pages) December 13, 2006 (4 pages)

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January 14, 2007 (4 pages) April 20, 2007 (6 pages) 22.

March 20, 2007 (4 pages)

In its current motion to modify the scheduling order, the Government requests a

25 day extension from April 30, 2007 until May 25, 2007. The request makes no reference to parties continuing to pursue settlement. 23. As previously discussed, to date the Government has issued no written requests

related to the Government taking discovery in any form, that is other than the two motions to modify the Court's scheduling order. III. ARGUMENT The Government's motion does not establish good cause for extending the deadline for fact witness depositions, much less meet the standard set by the Court's Scheduling Order that the discovery deadline could be extended only for "exceptional or unforeseen" circumstances. That Government counsel might be assigned to "bid protest duty" is neither exceptional nor unforeseen. It is routine. In view of the Government's consistent practice of ignoring its discovery obligations to Tetra Tech and its commitments to the Court, coupled with its failure to initiate any discovery for more than a year, Government counsel's schedule constraints may be understandable, but they are clearly unforgivable. In its motion, the Government has the temerity to suggest that discovery should be reopened if the Court grants Tetra Tech's motion to amend its complaint. As set forth in Tetra Tech's motion for leave to file the amended complaint, the proposed amendments to the complaint are based solely on the Contracting Officer's final decision, the testimony of Government witnesses testifying pursuant to Rule 30(b)(6), and Government records. As Tetra Tech explained in its motion to amend, its amended complaint simply states as an alternative

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ground for relief the Contracting Officer's calculation of the amount owed to Tetra Tech, as corrected for the reasons explained by the Government's own Rule 30(b)(6) deponents. There is no basis whatsoever to "re-open" discovery. The Government is the sole source of the information upon which the proposed amendments to the complaint are based. If the Government wanted to discover whether the Contracting Officer's methodology was correctly applied, the Government could have easily discovered the same information that Tetra Tech obtained through depositions by simply interviewing the Government's own witnesses. In short, there is nothing to discover from Tetra Tech's files, even if the Government's request to re-open discovery was otherwise meritorious. Finally, it should be noted that Tetra Tech has already voluntarily produced the calculations that are set forth in its amended complaint. In so doing, Tetra Tech waived the negotiations privilege that would have otherwise attached to these calculations. Again, there is nothing to discover from Tetra Tech with regard to the Government's own methodology for its damages calculation that the Government does not already know. In conclusion, Plaintiff Tetra Tech EC, Inc. respectfully requests that the Government's motion to modify the scheduling order be denied. TETRA TECH EC, INC.

Date: April 27, 2007

By:

__s/ William W. Thompson , Jr.______________ William W. Thompson, Jr. Robert D. Banfield PECKAR, ABRAMSON, BASTIANELLI & KELLEY, LLP 1133 21st Street, N.W., Suite 500 Washington, D.C. 20036 (202) 293-8815 Telephone (202) 293-7794 Facsimile

Exhibit 1

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of April 2007, a copy of the foregoing PLAINTIFF'S OPPOSITON TO DEFENDANT'S MOTION TO MODIFY SCHEDULING ORDER with Exhibit 1, was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ William W. Thompson, Jr.

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