Free Memorandum - District Court of Federal Claims - federal

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No. 05-776C (Judge Sweeney) IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER TO PRECLUDE THE TAKING OF A RULE 30(B)(6) DEPOSITION ON CERTAIN TOPICS & PLAINTIFFS' CROSSMOTION TO COMPEL THE UNITED STATES TO IDENTIFY AND PRODUCE A RULE 30(B)(6) DESIGNEE(S) ON CERTAIN TOPICS

Respectfully submitted, OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (direct) (202) 637-5910 (facsimile) By: /s Jonathan L. Abram Jonathan L. Abram

HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace, and Houghton Freeman

Dated: August 16, 2007

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TABLE OF CONTENTS Page BACKGROUND .............................................................................................................................4 ARGUMENT.................................................................................................................................16 I. The Court's Analysis Of The Government's Motion For A Protective Order Should Focus On RCFC 26(c) And RCFC 30(b)(6) ...............................................17 A. The Government Must Show "A Clearly Defined And Serious Injury" To Have Good Cause For A Protective Order Under RCFC 26(c) .......................................................................................................................17 Pursuant To A Valid RCFC 30(b)(6) Notice, The Government Has A Duty To Put Forth A Prepared Witness, Not Prior Deposition Testimony ..............................................................................................................18

B.

II. III.

The Government Cannot Show "Good Cause" To Merit A Protective Order When The Government Itself Caused The Burden .................................................21 Plaintiffs Issued A Lawful RCFC 30(b)(6) Deposition Notice, Identifying Topics With "Reasonable Particularity," And The Government Is Obligated To Identify A Witness In Response, Not Designate CherryPicked Testimony...............................................................................................................25 The Government's Other Specific Objections To Topic ## 2-3, 7-9, 12-14, And 20 Of Plaintiffs' Revised USDA 30(b)(6) Do Not Justify Its Refusal To Identify An RCFC 30(b)(6) Designee(s)......................................................................33 A. The Government Must Produce A Witness In Response To Topic ## 9, 12, And 14 Because It Cannot Now Make An After-The-Fact Designation Of Dr. Hall; Nor Can It Hang Its Noncompliance With RCFC 30(b)(6) On The Vermont District Court's Previous Rulings ....................33 1. Plaintiffs are entitled to depose both the NVSL and the USDA because the NVSL and the USDA are separate governmental entities for purposes of RCFC 30(b)(6) ..............................34 The Vermont district court rulings do not eliminate the need for an RCFC 30(b)(6) deposition on Topic #12 ................................37

IV.

. B. C.

2.

The Government Has Not Fully Responded To Topic # 3 Of The Revised USDA 30(b)(6) Deposition Notice ..........................................................39 Topic # 5 Is Not Overly Broad ..............................................................................42

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TABLE OF CONTENTSContinued Page D. The Government Cannot Escape Its RCFC 30(b)(6) Obligations Based On Relevance Objections To Topic ## 2, 7, 8, 13, And 20 Because These Topics Directly Relate To Claims Or Defenses In This Case................................................................................................................42 1. 2. 3. Topic # 2 is relevant to show the USDA deemed plaintiffs' sheep, at the time of their importation, free of a TSE................................44 Topic ## 7 and 8 relate directly to the government's nuisance defense ........................................................................................45 Topic ## 13 and 20 are relevant to whether plaintiffs received fair market value for their sheep..................................................47

CONCLUSION..............................................................................................................................48 INDEX TO APPENDIX ................................................................................................................(i) Declaration of Kevin S. Willen............................................................................... (iv) ­ (v) Defendant's Initial Disclosures Pursuant to Rule 26(a)(1) .................. Pls.' App. 001 ­ 006 Letter, dated December 5, 2006, from S. Floyd to K. Willen.............. Pls.' App. 007 ­ 008 E-mail chain, dated January 11, 2007 ­ January 16, 2007 between K. Willen and S. Floyd .......................................................... Pls.' App. 009 ­ 011 E-mail, dated February 14, 2007, from K. Willen to S. Floyd ..................... Pls.' App. 012 E-mail chain, dated March 19, 2007, between K. Willen to S. Floyd ..................................................................................................... Pls.' App. 013 E-mail, dated March 29, 2007, from K. Willen to S. Floyd ........................ Pls.' App. 014 E-mail, dated April 13, 2007, from S. Floyd to K. Willen ........................... Pls.' App. 015 E-mail chain, dated April 13, 2007 ­ April 20, 2007, between K. Willen and S. Floyd ........................................................................ Pls.' App. 016 ­ 018 E-mail chain, dated February 21, 2007, between K. Willen and S. Floyd ......................................................................................... Pls.' App. 019 ­ 020 E-mail chain, dated April 13, 2007 ­ May 7, 2007, between K. Willen and S. Floyd ....................................................................... Pls.' App. 021 ­ 024 - ii -

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TABLE OF CONTENTSContinued Page

E-mail dated, May 7, 2007, from S. Floyd to K. Willen .............................. Pls.' App. 025 E-mail chain, dated May 15, 2007 ­ May 16, 2007, between K. Willen and S. Floyd ................................................................................. Pls.' App. 026 USDA organizational chart, found at: http://www.usda.gov/img/content/org_chart_enlarged.jpg ........................... Pls.' App. 027 APHIS organizational chart, found at: http://aphis.usda.gov/about_aphis/orgchart.shtml ......................................... Pls.' App. 028 Freeman v. USDA, No. 1:00CV255, 257, Ruling on Mots. For Prelim. Inj., (D. Vt. Aug. 1, 2000) ............................................... Pls.' App. 029 ­ 041 Freeman v. USDA, No. 1:00CV255, Memo. of Decision (D. Vt. Feb. 6, 2001) ............................................................................ Pls.' App. 042 ­ 051 Letter, dated June 7, 2007, from K. Willen to R. Chandler ................. Pls.' App. 052 ­ 053 Letter, dated June 11, 2007, from K. Willen to R. Chandler .............. Pls.' App. 054 ­ 055 Letter, dated June 20, 2007, from to K. Willen to R. Chandler .......... Pls.' App. 056 ­ 057 Letter, dated June 26, 2007, from K. Willen to R. Chandler .............. Pls.' App. 058 ­ 059 Letter, dated June 26, 2007, from R. Chandler to K. Willen .............. Pls.' App. 060 ­ 061 E-mail, dated June 26, 2007, from K. Willen to R. Chandler ............. Pls.' App. 062 ­ 063 Excerpted pages 15-18 & 197-198 from Linda A. Detwiler, D.V.M., Deposition Transcript dated January 30, 2007 ................................................................................. Pls.' App. 064 ­ 070 Excerpted pages 18-24; 124-125; from Stephen M. Hall,D.V.M., Ph.D. Deposition Transcript, dated February 22, 2007 ............................................................................... Pls.' App. 071 ­ 080 Excerpted pages 66-70 from Katherine I. O'Rourke, Ph.D. Deposition Transcript dated May 3, 2007............................................ Pls.' App. 081 ­ 086 Excerpted pages 11-12 from Richard E. Race, D.V.M. Deposition Transcript dated April 26, 2007 ........................................ Pls.' App. 087 ­ 089 - iii -

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TABLE OF CONTENTSContinued Page

Excerpted pages 32-41 from Richard Rubenstein Deposition Transcript dated February 7, 2007 .................................... Pls.' App. 090 ­ 100 Excerpted pages 18-20; and 103-108 from William G. Smith, D.V.M., Deposition Transcript dated November 15, 2006 ............................................................................. Pls.' App. 101 ­ 110 Excerpted pages 21-23; 119-120; and 236 from Diane L. Sutton, D.V.M., Deposition Transcript dated June 27, 2007 .............. Pls.' App. 111 ­ 118 Excerpted pages 30-33; and 198-199 from Wayne Zeilenga, D.V.M,. Deposition Transcript dated December 7, 2006 ... Pls.' App. 119 ­ 125

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TABLE OF AUTHORITIES CASES: Page(s)

Ag-Innovations, Inc. v. USDA, No. 1:02CV332, 2006 WL 462580 (D. Vt. Feb. 24, 2006) ..............................................................................................................38 Ag-Innovations, Inc. v. USDA, 6 Fed. Appx. 97 (2d Cir. 2001)...................................................38 Ag-Innovations, Inc. v. USDA, 95 Fed. Appx. 384 (2d Cir. 2004)...............................................39 A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No. 97CIV4978LMMHBP, 2002 WL 1041356 (S.D.N.Y. May 23, 2002) ..................................................................................20 Alexander v. FBI, 186 F.R.D. 137 (D.D.C. 1998)...................................................................30, 32 Alexander v. FBI, 188 F.R.D. 111 (D.D.C. 1998).........................................................................26 Alloc, Inc. v. Unilin Decor N.V., Nos. 02-C-1266, 03-C-342, 04-C-121, 2006 WL 2527656 (E.D. Wis. Aug. 29, 2006) ...................................................... 19, 29, 32-33 Boston Edison Co. v. United States, 75 Fed. Cl. 557 (2007)...................................................25, 35 Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338 (N.D. Ill. 1995)..........................20 Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001)........................................................................................................................45 Canal Barge Co. v. Commonwealth Edison Co., No. 98 C 0509, 2001 WL 817853 (N.D. Ill. July 19, 2001)...........................................................................................................43 Capital Props., Inc. v. United States, 49 Fed. Cl. 607 (2001)................................................ passim Casilla v. N.Y. State Dep't of Labor, No. 04 CIV 6694 (NRB), 2005 WL 3502050 (S.D.N.Y. Dec. 21, 2005) ........................................................................................................42 EEOC v. Otto, 75 F.R.D. 624 (D.C. Md. 1976) ............................................................................25 EEOC v. Thorman & Wright Corp., __ F.R.D. __, No. 06-2412-JWL-DJW, 2007 WL 1638602 (D. Kan. June 5, 2007) .......................................................................20, 31 FDIC v. Butcher, 116 F.R.D. 196 (E.D. Tenn. 1986), aff'd, 116 F.R.D. 203 (E.D. Tenn. 1987)........................................................................... 18-19 Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125 (E.D. Tex. 2003) ................................................................................................................ 27-28 Forest Prods. Nw., Inc. v. United States, 62 Fed. Cl. 109 (2004)............................................17, 29

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TABLE OF AUTHORITIESContinued Page(s) Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1 (1st Cir. 2000) ............................24, 29 Freeland v. Amigo, 103 F.3d 1271 (6th Cir. 1997) .......................................................................25 Freeman v. USDA, No. 1:00CV255, 257, Ruling on Mots. For Prelim. Inj. (D. Vt. Aug. 1, 2000) ...............................................................................................................38 Freeman v. USDA, No. 1:00CV255, Memo. of Decision (D. Vt. Feb. 6, 2001)...........................38 Fresenius Med. Care Holdings, Inc. v. Roxane Labs., Inc., No. 2:05-CV-0889, 2007 WL 1026439 (S.D. Ohio Mar. 30, 2007)........................................................................23 Guy Chem. Co. v. Romaco, N.V., No. CIVA 3:06-96, 2007 WL 184782 (W.D. Pa. Jan. 22, 2007).................................................................................................... 24-25 Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 1054279 (D. Kan. Apr. 9, 2007) ........................... 20, 26 ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1732369 (D. Kan. June 11, 2007).................................................................... passim Ierardi v. Lorillard, Inc., No. CIV. A. 90-7049, 1991 WL 158911 (E.D. Pa. Aug. 13, 1991)..........................................................................................................29 In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 627 (E.D. Mich. 1989) ..........................................................................................43 In re Vitamins Antitrust Litig., 217 F.R.D. 229 (D.D.C. 2002).....................................................34 King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475 (S.D. Fla. 1995)........................................................................................19, 27 LendingTree, Inc. v. LowerMyBills, Inc., No. 3:05CV153-C, 2006 WL 2443685 (W.D.N.C. Aug. 22, 2006).......................................................................................................19 Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992)...................................................................46 Mitsui & Co. (U.S.A.), Inc. v. P.R. Water Res. Auth., 93 F.R.D. 62 (D.P.R. 1981)............... 25-26 Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978) ......................................................47 Olivieri v. Rodriquez, 122 F.3d 406 (7th Cir. 1997) .....................................................................47

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TABLE OF AUTHORITIESContinued Page(s) Robbins v. NCO Fin. Sys., Inc., No. 2:06 CV 116, 2006 WL 3833352 (N.D. Ind. Dec. 12, 2006) ........................................................................................................43 Rofail v. United States, 227 F.R.D. 53 (E.D.N.Y. 2005)...............................................................42 Rose Acre Farms, Inc. v. United States, 373 F.3d 1177 (Fed. Cir. 2004), cert. denied, 545 U.S. 1104 (2005) ...................................................................................... 37, 46-47 SEC v. Selden, 484 F. Supp. 2d 105 (D.D.C. 2007)......................................................................34 Steil v. Humana Kan. City, Inc., 197 F.R.D. 442 (D. Kan. 2000) .................................................43 U.S. Philips Corp. v. Sears Roebuck & Co., 55 F.3d 592 (Fed. Cir. 1995)............................. 38-39 United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ..............................................................38 United States v. Taylor, 166 F.R.D. 356 (M.D.N.C.), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996).............................................................................................................. passim Williams v. Sprint/United Mgmt. Co., No. CIVA032200JWLDJW, 2006 WL 334643 (D. Kan. Feb. 8, 2006) ................................................................................36 Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990)....................................................... 43-44 STATUTES: 21 U.S.C. § 134a (2002) ............................................................................................................5, 44 RULES: Fed. R. Civ. P. 30(b)(6) Advisory Comm. Notes (1970 Amend.) ...........................................18, 32 RULES OF THE COURT OF FEDERAL CLAIMS: RCFC 26(a)(1) .................................................................................................................................6 RCFC 26(b)(1) ......................................................................................................................... 42-43 RCFC 26(c)..............................................................................................................................17, 25 RCFC 26(d)....................................................................................................................................23 RCFC 30(b)(6) ....................................................................................................................... passim RCFC 83(a)....................................................................................................................................18 - vii -

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TABLE OF AUTHORITIESContinued Page(s) REGULATIONS: 7 C.F.R. § 1.219 (2007) .................................................................................................................35 OTHER MATERIALS 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2037 (2d ed. 2007). .................................................................18

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Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace, and Houghton Freeman (collectively "plaintiffs") oppose the Government's Motion for a Protective Order To Preclude the Taking of a Rule 30(b)(6) Deposition on Certain Topics1/ and cross-move to compel the Government to identify and produce a designee(s) to address certain topics identified in Plaintiffs' Revised Rule 30(b)(6) Notice of Deposition of the United States Department of Agriculture ("USDA"), dated June 28, 2007 (hereinafter "Revised USDA 30(b)(6) Deposition Notice"). The Government, in contravention of the appropriate and customary method of identifying and producing a live designee(s) in response to a deposition notice issued pursuant to Rule 30(b)(6) of the Rules of the Court of Federal Claims (hereinafter "RCFC"), seeks a protective order barring plaintiffs from obtaining an RCFC 30(b)(6) deposition from the USDA on certain topics and, for others, seeks to designate testimony of certain fact and proposed expert witnesses who were deposed in their individual capacities. The Government knew of plaintiffs' intent to seek an RCFC 30(b)(6) deposition from the USDA since December 2006, and it knew the specific topics for which plaintiffs had requested a designee since receiving Plaintiffs' Rule 30(b)(6) Notice of Deposition of the USDA on February 12, 2007 (hereinafter "Original USDA 30(b)(6) Deposition Notice"). For months, however, the Government sat back and allowed the depositions of the individuals from whose depositions it now wants to designate testimony to be scheduled and to proceed, disregarding repeated requests from plaintiffs' counsel to schedule a USDA designee(s) and without providing any notice prior to or at those depositions that the individuals were likely designees. Moreover, as the Government concedes, it did not prepare
1

/ Plaintiffs will refer to the Government's Motion for a Protective Order To Preclude the Taking of a Rule 30(b)(6) Deposition on Certain Topics as "Government's Motion" and will cite it as "Gov't's Mot. at ___." To reduce repetition in the documentary record, plaintiffs, when appropriate, will rely on documents submitted in the Government's Appendix. References to the Government's Appendix will be cited as "Gov't's App. at ___."

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those individuals as RCFC 30(b)(6) designees in response to either the Original or the Revised USDA 30(b)(6) Deposition Notice. Further, the Government also ignores that the parties had agreed to utilize the RCFC 30(b)(6) procedure to resolve, in part, the plaintiffs' Motion for Leave to Conduct More Than Ten Depositions and to target the witnesses that plaintiffs needed to depose. Now, after most depositions have concluded and discovery is winding down, the Government seeks to shield certain USDA decision-makers from deposition by offering cherrypicked designations that favor only the Government. It contends that, in hindsight, it would have designated the already-deposed individuals in response to the USDA 30(b)(6) Deposition Notice and that, as a result, to re-depose them is cumulative, duplicative, and an undue burden. It also contends that certain deposition topics are irrelevant, despite the fact that these issues directly relate to the Government's nuisance defense and whether plaintiffs' claims proceed as a Fifth Amendment or statutory taking. The parties have amicably resolved many of their disputes concerning the scope of the USDA deposition topics, narrowing the language of the topics and reaching agreement on nine topics that are not at issue (i.e., Topic ## 4, 6, 10, 15, 16-19, and 21). However, the parties have not reached agreement on eleven remaining topics (i.e., Topic ## 2, 3, 5, 7-9, 11-14, and 20) identified in the Revised USDA Rule 30(b)(6) Deposition Notice. But none of the Government's objections absolve the Government of its obligation to designate and put forward RCFC 30(b)(6) witnesses for deposition. Nor will the Government agree to plaintiffs' offer to accept, in an attempt to minimize the need for additional depositions, the entirety of the depositions of certain witnesses as responsive to the remaining topics, where appropriate. Indeed, the Government rejected that offer for some of the very same reasons that plaintiffs contend the cherry-picked

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designations are insufficient ­ namely, the fact that the witnesses were unprepared or not the best persons to serve as Government designees. Plaintiffs respectfully request that the Court (i) deny the Government's Motion; (ii) grant plaintiffs' Motion;2/ and (iii) order the Government to produce an appropriate designee(s) to address Topic ## 2, 3, 5, 7-9, 11-14, and 20, as identified in the Revised USDA 30(b)(6) Deposition Notice. If the Court decides not to order the Government to produce a designee(s), we alternatively request that the Court order the Government to designate the entirety of certain individuals' deposition testimony as responsive to these topics. If the Court decides not to adopt either of these solutions, plaintiffs request that the Court permit plaintiffs to depose certain USDA decision-makers whom plaintiffs initially sought to depose, including Drs. Ron DeHaven, Craig Reed, Dan Glickman, and Alfonso Torres.3/

2

/ Plaintiffs will refer to their Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee(s) on Certain Topics as "plaintiffs' Motion" and will cite it as "Pls.' Mot. at ___." References to plaintiffs' Appendix, which include documents not provided in the Government's Appendix, will be cited as "Pls.' App. at ___." / Plaintiffs note that on August 10, 2007, the Government served two Notices of Inspection for plaintiffs' property and a second RCFC 30(b)(6) deposition notice for Skunk Hollow Farm, Inc. Apparently, the Government has no time to identify a USDA 30(b)(6) designee(s) in response to plaintiffs' requests but seems to have time to travel back to Vermont a third time to inspect plaintiffs' farms (yet again). Moreover, the RCFC 30(b)(6) notice seeks a second RCFC 30(b)(6) deposition of Skunk Hollow Farm, Inc. relating to the same information already provided in a previous RCFC 30(b)(6) setting and also by individual witnesses whom the Government previously has deposed. Although this RCFC 30(b)(6) discovery request is not (yet) the subject of a motion, if the Court rules that the Government is entitled to designate testimony in response to plaintiffs' Revised USDA 30(b)(6) Deposition Notice (which it should not), plaintiffs request the privilege of doing the same in response to the Government's Second RCFC 30(b)(6) request. -33

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BACKGROUND The Government's "Background" section omits reference to many important events underlying plaintiffs' issuance of an RCFC 30(b)(6) deposition notice to the USDA. In this section, plaintiffs provide a comprehensive summary of the relevant history. This case involves the USDA's seizure and slaughter of all of plaintiffs' healthy, valuable, purebred milking and meat sheep on the premise that the sheep were infected with what the USDA termed "an atypical transmissible spongiform encephalopathy [(TSE)] of foreign origin." (Compl. ¶¶ Intro., 8.) However, as evidence accumulated during discovery shows, an "atypical [TSE] of foreign origin" is neither an actual nor a scientifically-recognized disease. Instead, the Government declared the sheep to be "affected with or exposed to" this so-called "disease" to justify their slaughter as a pretext for maintaining the perception that the United States was free of Bovine Spongiform Encephalopathy (BSE), a TSE commonly found in cattle. At trial, plaintiffs will argue that the sheep were slaughtered for this policy decision, and as a result, plaintiffs are entitled to compensation. At the time of the seizure, the USDA had in its possession over 150 USDA-conducted, scientifically-validated, and legally-authorized tests from multiple flocks confirming that the sheep were not infected with any type of TSE. (Compl. ¶ 21.) Despite these results, the USDA instead relied on one set of results from a third type of test ­ one that at the time was neither the legal nor authoritative method for diagnosing a TSE, and one that did not follow a validated methodology ­ purporting to show that four sheep from Mr. Freeman's flock were "positive" for a TSE. (Compl. ¶¶ 21-22.) The test, however, could not definitively differentiate between the various types of TSEs, including scrapie, which is common in sheep and has been present in the United States since the 1940s. None of the Faillaces' sheep tested positive under this third test.

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In addition to slaughtering the sheep and seizing certain sheep-related assets, the USDA also issued federal quarantines over plaintiffs' real property, replacing quarantines that the USDA had requested that the Vermont Department of Agriculture (VTDA) impose on plaintiffs' sheep and other property in October 1998. (Compl. ¶¶ Intro., 29-30.) Plaintiffs filed legal actions in the United States District Court for the District of Vermont challenging the validity of a Declaration of Extraordinary Emergency issued in July 2000 after the four allegedly "positive" results were released. (Compl. ¶ 24.) The cases relating to plaintiffs' sheep ultimately were declared moot after the Government seized (and eventually killed) every single one of plaintiffs' sheep prior to an appeal to the United States Court of Appeals for the Second Circuit.4/ (Compl. ¶¶ 25-26.) Following the seizure, test results on all 234 of Mr. Freeman's sheep, using at least three different types of tests, came back negative. Test results on ninety-seven of ninety-nine sheep owned by the Faillaces (through Ag-Innovations, Inc.) also came back negative; two of their sheep were diagnosed positive, again by the same test that used unvalidated and flawed scientific procedures but also, this time, in violation of a USDA protocol. Plaintiffs then filed this action seeking just compensation under the Fifth Amendment, or alternatively, fair market value under former 21 U.S.C. § 134a (2002), for the value of the slaughtered sheep and the taking of their other property. (Compl. ¶¶ 25-26.)

4

/ In 2000, prior to the seizure of their sheep, plaintiffs filed two civil actions against the USDA in the United States District Court for the District of Vermont challenging the validity of the USDA's Declaration of Extraordinary Emergency and Orders to Dispose: Civil Action No. 1:00CV255, brought by Mr. Freeman, and Civil Action No. 1:00CV257, brought by AgInnovations, Inc. and the Faillaces. These cases were eventually consolidated. In 2002, after the seizure and slaughter of their sheep, Ag-Innovations, Inc. and the Faillaces filed another federal action in Vermont, Civil Action No. 1:02CV332, challenging the validity of the quarantine imposed on the Faillaces' property. Mr. Freeman was not a party to this second action. -5-

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The parties filed their initial disclosures pursuant to RCFC 26(a)(1) on March 14, 2006, and written discovery commenced in August 2006. A large number of individuals had played a role in the events leading to and following the seizure of plaintiffs' property, a fact confirmed by the Government's Rule 26(a)(1) disclosures and interrogatory responses wherein it identified twenty-two individuals who possessed relevant, discoverable information. (Pls.' App. at 001006.) Given the large number of potential witnesses involved, plaintiffs moved for leave to take more than the allotted ten depositions on November 22, 2006, seeking pre-authorization from the Court to depose certain individuals who played prominent roles in specific aspects of this case.5/ (See docket entry # 24.) At the time of that filing, only one deposition had occurred: the deposition of Dr. William Smith, on November 15, 2006. Following the submission of this motion, the Government, on December 5, 2006, identified eleven proposed expert witnesses,6/ four of whom were not identified as potential

/ Specifically, plaintiffs identified the following individuals in its motion: Yves Berger (Appraiser); John Clifford (former Acting Deputy Administrator, USDA, APHIS, Veterinary Services (VS)); Ron DeHaven (former Deputy Administrator, USDA, APHIS, VS); Linda Detwiler (former Senior Veterinarian, Emergency Programs, USDA, APHIS, VS); Leon Graves (former Commissioner, Vermont Department of Agriculture, Food, and Markets); Stephen Mark Hall (Director of Pathology, USDA, APHIS); Thomas Holt (former Associate Regional Director for the Eastern Region Veterinary Services, USDA, APHIS, VS); Samuel Hutchins (former Vermont State Veterinarian); Todd Johnson (Vermont State Veterinarian); Axel Meister (Appraiser); Katherine O'Rourke (Research Microbiologist, USDA, Agricultural Research Service, Animal Disease Research Unit); Richard Race (Senior Investigator, National Institute of Health, Rocky Mountain Laboratory); Craig Reed (former Deputy Administrator, APHIS); Richard Rubenstein (Head of Molecular and Biochemical Neurovirology, Institute for Basic Research in Developmental Disabilities); Mary Jo Schmerr (Lead Scientist, Prion Diseases, Agricultural Research Service, National Animal Disease Center); William Smith (Area Veterinarian in Charge, New England Area, USDA, APHIS, VS); Alfonso Torres (Deputy Administrator, USDA, APHIS, VS); Peter Welkerling (Appraiser); and Wayne Zeilenga (USDA, APHIS, VS).
6

5

/ These witnesses included Yves Berger, Peter Welkerling, Axel Meister, Drs. Stephen Mark Hall, Richard Rubenstein, Linda Detwiler, Richard Race, David M. Taylor, W. Terry Disney, Bradley Reiff, and Robert Rohwer. (Pls.' App. at 007-008.) -6-

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deponents in plaintiffs' motion, specifically Drs. David Taylor, Terry Disney, Bradley Reiff, and Robert Rohwer, bringing to thirty-one the total number of potential witnesses whom the Government had identified. In reply briefing, plaintiffs further requested leave to depose these individuals. (See docket entry # 31.) As an alternative to deposing all of these witnesses, plaintiffs proposed working with the Government to identify certain decision-makers from whom discovery was necessary using the RCFC 30(b)(6) device. (See id. at 5.) In reply briefing on a separate but related motion, the Government agreed with this approach, writing that it did "not object to plaintiffs' suggestion." (See docket entry # 33, at 13.) During the briefing period, the parties worked together to identify individuals whom plaintiffs would need to depose. On January 11, 2007, counsel for plaintiffs informed the Government that they intended to seek an RCFC 30(b)(6) designee(s) from the USDA pertaining to certain policy decisions made by the agency regarding the taking of the sheep and the imposition of the quarantines, as well as an RCFC 30(b)(6) designee(s) from the National Veterinary Services Laboratory ("NVSL") pertaining to the testing of plaintiffs' sheep. (Pls.' App. at 009-010.) The Government's counsel, Ms. Floyd, received and acknowledged this email, indicating that she was "working on the scheduling of the other depositions that [plaintiffs] had requested." (Pls.' App. at 009.) Thereafter, on January 22, 2007, the Court held a status conference to address, inter alia, plaintiffs' motion for leave. (See docket entry # 34.) At that conference, the parties again agreed to utilize RCFC 30(b)(6) as a mechanism to target topics rather than individuals in order to pare down the individuals whom plaintiffs would have to depose. The Government also indicated its intent to raise nuisance as an affirmative defense to plaintiffs' takings claims. In its Order dated

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January 24, 2007, the Court memorialized the parties' representations that they would work to "resolve between themselves which of the [USDA] officials plaintiffs will depose." (See docket entry # 35.) In addition, it permitted the Government to amend its Answer to raise a nuisance defense. (See id.) The Government filed its Amended Answer on February 13, 2007, asserting that "[p]laintiffs' Fifth Amendment takings claims are barred by nuisance" and that "[p]laintiffs should be denied recovery under their Fifth Amendment takings claims." (See docket entry # 36, at ¶¶ 53-54.) Following the agreement on utilizing the RCFC 30(b)(6) mechanism, Dr. Linda Detwiler appeared for deposition on January 30, 2007. At no point prior to or during this deposition did the Government indicate that Dr. Detwiler could potentially be designated in response to any RCFC 30(b)(6) topic. Thereafter, in line with the parties' discussions and agreements about focusing the depositions on the most important governmental personnel, plaintiffs served two RCFC 30(b)(6) notices upon the Government. The first was directed to the NVSL, dated February 8, 2007, and identified fourteen topics addressing certain information and methodologies relating to testing performed by or for the NVSL. (See Gov't's App. at 001-011) (hereinafter "NVSL 30(b)(6) Deposition Notice"). Plaintiffs submitted this notice following the Government's designation of Dr. Hall as the NVSL's designee. The second RCFC 30(b)(6) deposition notice was Plaintiffs' Original USDA 30(b)(6) Deposition Notice, which identified twenty-one topics concerning certain decisions made by ­ and other critical information held by ­ USDA personnel. (See Gov't's App. at 012-022.) Since no designee(s) had yet been identified at the time of service of the Original USDA 30(b)(6) Deposition Notice, plaintiffs' counsel tentatively scheduled the RCFC 30(b)(6) deposition for March 29, 2007, with the understanding that it would be re-

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scheduled upon the USDA's identification of the appropriate designee(s). (See Gov't's App. at 012.) In his February 12th letter, counsel for plaintiffs also expressed a "willing[ness] to discuss designating certain portions of such depositions as responsive to those topics so as to avoid having to recall" certain individuals who had already been deposed. (Id.) From February 12, 2007, until mid-May, plaintiffs received no response from the Government on the Original USDA 30(b)(6) Deposition Notice, with the exception of Topic ## 3 and 21. During that time, plaintiffs repeatedly requested information on the scheduling of the USDA's RCFC 30(b)(6) deposition. The Government's counsel repeatedly responded that she did not have information on designee(s) or their schedules at that time. For example, on February 14, 2007, counsel for plaintiffs sent an e-mail to Ms. Floyd requesting information on the scheduling of the witnesses whom plaintiffs had identified, including the USDA. (Pls.' App. at 012.) Plaintiffs have no record of a response. On March 19, 2007, counsel for plaintiffs again requested information from Ms. Floyd on scheduling the remaining depositions, writing "[m]ultiple times these past few weeks we have discussed getting the last several witnesses scheduled, but it has not yet happened. I would like to get a final schedule in place so we can move to extend the discovery order, as we've mutually agreed, and finish off discovery." (Pls.' App. at 013.) In response, Ms. Floyd indicated that she was out of town and could not coordinate with the witnesses. (See id.) She further indicated that she would address the issue the following week. (See id.) Having not heard from Ms. Floyd the following week, on March 29, 2007, counsel for plaintiffs again requested that Ms. Floyd provide information on the scheduling of the remaining depositions. (Pls.' App. at 014.) No response was received regarding the Original USDA 30(b)(6) Deposition Notice. In addition, at no point during this period did the Government object to the topics of the Original USDA 30(b)(6) Deposition Notice

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or make any attempts to coordinate individual depositions so that certain witnesses could be presented in response to that notice. On April 6, 2007, the parties filed a Joint Status Report and Request for Status Conference. (See docket entry # 37.) That filing, in part, reflected the parties' difficulty in resolving the scheduling of witnesses, including designees in response to the Original USDA 30(b)(6) Deposition Notice. (See id.) The parties requested a telephone conference for the latter part of April in the event that they were unable to resolve the issues. (Id.; see also docket entry # 38.) Over two months after plaintiffs had submitted their Original USDA 30(b)(6) Deposition Notice, the Government, on April 13, 2007, indicated that it would produce Dr. Diane Sutton in response to Topic # 3.7/ (Pls.' App. at 015.) The Government did not reference the scheduling of any other witnesses for any other topic at that time; nor did it make any objection to the contents of those topics. The parties were unable to reach resolution on the scheduling of witnesses, and a status conference was scheduled for April 23, 2007. (See docket entry # 39.) Prior to the telephone conference, counsel for plaintiffs again requested information on the scheduling of the RCFC 30(b)(6) designee(s). (Pls.' App. at 016.) In response, Ms. Floyd indicated that she had "not had a chance to finalize the list of deponents for the Rule 30(b)(6) deposition" and would likely not "be able to complete that process before the end of the second week in May because of travel and other activities in this and my other cases." (Pls.' App. at 016.)8/ The Government again did not cite objections to the Original USDA 30(b)(6) Deposition Notice.
7 8

/

Dr. Sutton's deposition took place on June 27, 2007.

/ In the Government's response, part of its justification for the scheduling difficulty was that the USDA's counsel, Ms. Darlene Bollinger, had suffered the loss of her father-in-law. - 10 -

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At the April 23rd status conference, counsel for plaintiffs raised the issue that the Government still had not designated any witnesses, with the exception of Dr. Sutton, in response to the Original USDA 30(b)(6) Deposition Notice. Following this conference, the Court set another status conference for May 29, 2007, allowing the Government until May 24, 2007, to identify USDA RCFC 30(b)(6) designee(s). (See docket entry # 40.) Following plaintiffs' submission of their Original USDA 30(b)(6) Deposition Notice and even after the April 23rd conference, other witnesses' depositions were scheduled and taken, with no reference to these deponents or their deposition testimony being used to satisfy any of the topics in the Original USDA 30(b)(6) Deposition Notice. For example, Dr. Hall's deposition took place on February 22, 2007, pursuant to the NVSL 30(b)(6) Deposition Notice. The day before that deposition, plaintiffs requested that the Government identify the topics to which Dr. Hall was to provide deposition testimony. (Pls.' App. at 019-020.) In response, Ms. Floyd identified the various topics that Dr. Hall was prepared to address from the NVSL 30(b)(6) Deposition Notice, but designated none of the topics from the Original USDA 30(b)(6) Deposition Notice. (Pls.' App. at 019.) In fact, when counsel for plaintiffs asked Dr. Hall during his deposition about certain policy decisions made by the USDA, Ms. Floyd objected and instructed Dr. Hall not to answer, claiming his responses were "beyond the scope of this witness's expertise." (Pls.' App. at 079 (Hall Dep. 124:7-9).) He was, in Ms. Floyd's own words, "not a policy maker." (Id. at 079-080 (Hall Dep. 124:7-9,124:22-125:3).) As another example, Dr. Race's deposition took place on April 26, 2007. Neither prior to nor during Dr.

(Pls.' App. at 016.) Plaintiffs' counsel sympathizes with Ms. Bollinger's loss and understands how this somber event would interfere with the scheduling of witnesses' depositions; however, given the Government's oft-cited scheduling difficulties, most of which were unrelated to the death in Ms. Bollinger's family, plaintiffs feel compelled to submit this exchange in full candor to the Court. - 11 -

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Race's deposition did the Government offer Dr. Race as a designee in response to any topic in the Original USDA 30(b)(6) Deposition Notice. And as a third example, Dr. O'Rourke's deposition took place on May 3, 2007. Prior to or during her deposition, the Government made no mention of offering Dr. O'Rourke's testimony in response to any topic in the Original USDA 30(b)(6) Deposition Notice. The Government now seeks to designate testimony from each of these witnesses (and others) as responsive to the Revised USDA 30(b)(6) Deposition Notice. On May 7, 2007, plaintiffs again requested information on the scheduling of certain witnesses, including the USDA's RCFC 30(b)(6) designee(s). (Pls.' App. at 021.) Ms. Floyd responded, suggesting as she had done for months that she was scheduling witnesses: We will identify possible dates for the USDA's 30(b)(6) designees after we have identified who those witnesses will be. As you recall, in our discussions with Judge Sweeney on April 23rd, the court has given us until May 24th to identify our Rule 30(b)(6) depositions witnesses. As we talk with our witnesses during the next two weeks, it would be very helpful if you could tell me what dates you are available in late August and early September. We will try to find available dates in order to schedule the Rule 30(b)(6) depositions during that late August/early September time period. (Pls.' App. at 025.) The Government again did not make any objections to the Original USDA 30(b)(6) Deposition Notice. On May 15, 2007, the Government contacted counsel for plaintiffs to schedule the deposition of Dr. John Clifford, indicating that he was being designated in response to the Original USDA 30(b)(6) Deposition Notice; it did not, however, identify for which topic(s) Dr. Clifford was being designated. (Pls.' App. at 026.) The following day, counsel for plaintiffs requested the Government to identify those topics. (Id.) Plaintiffs have no record of a response. Late in the afternoon on May 24, 2007, almost four and one-half months after plaintiffs gave notice of their intent to seek an RCFC 30(b)(6) deposition of the USDA and almost three and one-half months after service of the Original USDA 30(b)(6) Deposition Notice, the - 12 -

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Government submitted its objections. The Government objected in large part to perceived deficiencies in the topics, including that most of the topics were "overbroad" and "vague" for purposes of RCFC 30(b)(6). (See Gov't's App. at 023-024; see also Def.'s Resp. to Pls.' Rule 30(b)(6) Notice of Dep. of the USDA at Gov't's App. at 025-057.) The Government declined to produce a designee on nineteen of the twenty-one topics; it only agreed to designate Drs. Sutton and Clifford, whom it had identified previously for Topic ## 3 and 21, respectively. (See Gov't's App. at 024.) Instead of designating witnesses, and despite its alleged "objections," the Government offered designations of deposition testimony for fifteen topics, specifically Topic ## 3-6 and 9-20. It did not designate any testimony for Topic ## 2, 7, and 8.9/ As promised in his letter dated February 12th, counsel for plaintiffs reviewed the substance of proposed designations over the Memorial Day holiday weekend. Following the holiday, and prior to the scheduled status conference, counsel for plaintiffs on May 29, 2007, submitted a letter in response to the Government's objections. (See Gov't's App. at 058-062.) Plaintiffs agreed to accept designated testimony in response to Topic ## 6, 10, and 15-19, subject to certain revisions in the designations. (See id. at 058.) However, counsel for plaintiffs deemed the remaining designations insufficient to satisfy the respective topics in full and requested that the Government produce an appropriate designee(s) for the remaining topics, including those for which no designations were offered. (See id.) First, plaintiffs did not believe that any of the Government's specific objections alleviated its obligation to designate an RCFC 30(b)(6) witness(es) because the topics were identified with "reasonable particularity." (See id. at 59.) Second, although plaintiffs were willing to consider the use of designations of previous
9

/ On May 29, 2007, following the status conference, the Government submitted a corrected copy of its response to the Original USDA 30(b)(6) Deposition Notice, correcting certain designation errors. (See Gov't's App. at 63.) - 13 -

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deposition testimony to satisfy some of the topics, they did not believe these designations could satisfy a super-majority of the topics, especially when the witnesses (1) were not properly prepared for an RCFC 30(b)(6) deposition and (2) when plaintiffs were not made aware in advance that these witnesses would be offered as designees. Moreover, most of the designations consisted of cherry-picked testimony that supported the Government's theory of the case; many other portions of these depositions were either omitted or did not contain sufficient information to satisfy the specific topic because such testimony was not in the record. To satisfy the Government's concern that the topics were overbroad, counsel for plaintiffs agreed to remove the phrase "but not limited to" from all of the applicable deposition topics. (See id.) At the status conference on May 29th, the parties notified the Court that they still had not resolved the RCFC 30(b)(6) issue but would continue to work together. Counsel for plaintiffs also indicated that he would further narrow the topics found in the Original USDA 30(b)(6) Deposition Notice to satisfy certain additional objections that the Government had. On June 1, 2007, plaintiffs submitted a letter further narrowing Topic ## 2, 4, 5, 7-9, 11-14, and 20, attempting again to satisfy the Government's "overbroad" and "vague" objections. (See Gov't's App. at 064-066.) Plaintiffs also proposed to accept the Government's designations for Topic ## 2, 4, 5, 9, 11-14, and 20 if the Government would agree to designate a witness(es) for each of the narrowed topics. (See id. at 064.) Almost three weeks later, by letter dated June 19, 2007, the Government responded. It declined plaintiffs' offer to designate any additional witness(es). (See Gov't's App. at 067-074.) Instead, it, inter alia, (1) submitted another corrected response to plaintiffs' Original USDA 30(b)(6) Deposition Notice, which amended certain designations pursuant to plaintiffs' May 29th letter; (2) proposed changes to revised Topic # 21; (3) further objected and sought clarification

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on the revised, narrowed topics; and (4) offered additional designations for Topic ## 11-14 and 20. (See id.; see also Second Corrected Resp. to Pls.' Rule 30(b)(6) Notice of Dep. of the USDA, Gov't's App. at 075-107.) Plaintiffs responded on June 28, 2007 (see Gov't's App. at 108-15), by, inter alia, submitting the Revised USDA 30(b)(6) Deposition Notice. This Notice (1) captured changes made to certain topics from the Original USDA 30(b)(6) Deposition Notice based upon correspondence with the Government, and (2) further clarified and narrowed the scope of the disputed topics. (See Gov't's App. at 116-25.) Plaintiffs also rejected the Government's attempt to rely on additional, cherry-picked deposition testimony to satisfy these topics, explaining how the designations were (1) insufficient in relation to other testimony on the same topic; (2) inconsistent with other witnesses' testimony; and (3) incomplete due to lack of appropriate preparation. (See Gov't's App. at 110.) As an alternative to a live deposition, plaintiffs offered another compromise: to accept the entirety of the deposition testimony of certain witnesses, specifically Drs. Detwiler, Hall, Race, Rubenstein, Smith, and Zeilenga, in response to all of the disputed deposition topics. (See id.) Plaintiffs also attempted again to explain why the Government's objections were insufficient to absolve its obligation to designate an RCFC 30(b)(6) witness(es). (See id. at 112-15.) In a letter dated July 24, 2007, the Government, inter alia, again refused to offer any additional designee(s), offering instead additional designated testimony. (See Gov't's App. at 126-28.) It also rejected plaintiffs' offer to designate the entirety of the deposition testimony of Drs. Detwiler, Hall, Race, Rubenstein, Smith, and Zeilenga for several reasons, conceding that "the testimony does not represent the position of the agency," that these witnesses "were not the most knowledgeable person[s] to provide testimony; and . . . [that] they had not prepared to

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testify at the deposition [as RCFC 30(b)(6) witnesses]." (See id. at 127.) In addition, the Government submitted a Response to the Revised USDA 30(b)(6) Deposition Notice, sending by letter dated the same day, a corrected version of that response. (See Gov't's App. at 129-61.) Plaintiffs submitted their final response on July 27, 2007. (See Gov't's App. at 162-63.) Plaintiffs agreed to accept the Government's designation for Topic # 4, subject to a correction, and confirmed that they would accept the revised designations for Topic ## 6, 10, and 15-19. However, plaintiffs determined that the Government did not designate any testimony with regard to Topic ## 2, 3, 7, and 8 and provided insufficient, cherry-picked designations for Topic ## 5, 9, 11-14, and 20.10/ Plaintiffs again asked that the Government either designate the entirety of the depositions of Drs. Detwiler, Hall, Race, Rubenstein, Smith, and Zeilenga in response to the disputed topics or put forward designee(s) to address the topics. (See id.) In response, the Government filed the instant Motion. ARGUMENT The Government has completely manipulated the RCFC 30(b)(6) process, both with regard to the purpose of the rule itself, as well as its use in this case. Under RCFC 30(b)(6), a governmental agency shall produce a witness in response to a valid RCFC 30(b)(6) notice. The Government has failed in this obligation, and none of its purported objections excuse that failure or justify a protective order. The Government cannot claim that designating an RCFC 30(b)(6) witness is unduly burdensome because any burden has resulted from the Government's own fivemonth delay in designating a witness. Plaintiffs have issued a reasonably particularized RCFC 30(b)(6) notice; it is not, as the Government contends, cumulative, duplicative, overly broad or
10

/ Plaintiffs added Topic # 3 because the Government only designated Dr. Sutton to testify to that topic as it related to scrapie, not other TSEs that the Government claims may be present in sheep. - 16 -

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burdensome. Indeed, the only reason the Government now claims the notice is cumulative and duplicative is because it would like to designate individuals who already have been deposed. Furthermore, the Government's specific objections to particular topics fail to excuse its noncompliance with RCFC 30(b)(6). Plaintiffs are entitled to depose a USDA designee(s) in response to their Revised USDA 30(b)(6) Deposition Notice and should not be required to accept cherry-picked designations from the depositions of unprepared witnesses. I. The Court's Analysis Of The Government's Motion For A Protective Order Should Focus On RCFC 26(c) And RCFC 30(b)(6). A. The Government Must Show "A Clearly Defined And Serious Injury" To Have Good Cause For A Protective Order Under RCFC 26(c).

RCFC 26(c) permits this Court to enter a protective order "for good cause shown." The party seeking a protective order ­ in this case the Government ­ bears the burden of showing "good cause." Capital Props., Inc. v. United States, 49 Fed. Cl. 607, 611 (2001). "`Good cause' requires a showing that the discovery request is considered likely to oppress an adversary or might otherwise impose an undue burden." Id. Specifically, RCFC 26(c) states that a protective order may be entered "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" RCFC 26(c). A party cannot simply state that it is entitled to a protective order; rather, it must "specifically [demonstrate] that disclosure will cause a clearly defined and serious injury . . . . Broad allegations of harm, unsubstantiated by specific examples, however, will not suffice." Forest Prods. Nw., Inc. v. United States, 62 Fed. Cl. 109, 114 (2004) (internal quotations and citations omitted). A court may consider the following seven factors when determining whether to issue a protective order: (1) (2) whether disclosure will violate any privacy interests; whether the information is being sought for a legitimate purpose or for an improper - 17 -

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(3) (4) (5) (6) (7)

purpose; whether disclosure of the information will cause a party embarrassment; whether confidentiality is being sought over information important to the public health and safety; whether the sharing of information among litigants will promote fairness and efficiency; whether a party benefiting from the order of confidentiality is a public entity or official; and whether the case involves issues important to the public.

Id. at 114 n.9 (citation omitted). The bar for a protective order is particularly high when a party seeks to preclude a deposition. "It is even more difficult to show grounds for ordering that discovery not be had when it is a deposition that is sought, and most requests of this kind are denied." 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2037, 2772-73 (2d ed. 2007). B. Pursuant To A Valid RCFC 30(b)(6) Notice, The Government Has A Duty To Put Forth A Prepared Witness, Not Prior Deposition Testimony.

RCFC 30(b)(6) ­ which exactly mirrors Federal Rule of Civil Procedure ("Federal Rule(s)") 30(b)(6)11/ ­ permits a party to serve on a governmental agency a deposition notice which "describes with reasonable particularity the matters on which examination is requested." RCFC 30(b)(6). The organization is then required to designate one or more persons to testify on its behalf. Id. One of the purposes of Federal Rule 30(b)(6) is to "curb the `bandying' by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it." Fed. R. Civ. P. 30(b)(6) Advisory Comm. Notes (1970 Amend.); see also FDIC v. Butcher, 116 F.R.D. 196, 199
11

/ The Court of Federal Claims rules are intended to be consistent with the Federal Rules. RCFC Rule 83(a); Rules Committee Note, RCFC Prec. Rule 1 ("[I]nterpretation of the court's rules will be guided by case law and the Advisory Committee Notes that accompany the Federal Rules."). - 18 -

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(E.D. Tenn. 1986) (stating that Federal Rule 30(b)(6) is intended "to curb any temptation a [litigant] might have to shunt a discovering party from `pillar to post.'"), aff'd, 116 F.R.D. 203, 205 (E.D. Tenn. 1987). As the court in United States v. Taylor wrote, The designee, in essence, represents the corporation just as an individual represents him or herself at a deposition. Were it otherwise, a corporation would be able to deceitfully select at trial the most convenient answer presented by a number of finger-pointing witnesses at the depositions. Truth would suffer. 166 F.R.D. 356, 361 (M.D.N.C.), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996). Thus, the rule itself places an "affirmative duty" on the organization to name a designee who is prepared to address the topics and information "known or reasonably available" to the organization. King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995) ("[Federal Rule] 30(b)(6) obligates the responding corporation to provide a witness who can answer questions regarding the subject matter listed in the notice . . . . The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are `known or reasonably available' to the corporation."). RCFC 30(b)(6) explicitly requires an organization to designate a witness, as opposed to prior deposition testimony. See Alloc, Inc. v. Unilin Decor N.V., Nos. 02-C-1266, 03-C-342, 04-C-121, 2006 WL 2527656, at *2 (E.D. Wis. Aug. 29, 2006) (holding "[plaintiff] is entitled to depose designated [Federal Rule] 30(b)(6) witnesses, knowing at least by the time of the deposition, that they are designated to testify by [defendant] and on what topics they are designated to testify," and rejecting defendant's attempt to designate prior deposition testimony as Federal Rule 30(b)(6) testimony); see also LendingTree, Inc. v. LowerMyBills, Inc., No. 3:05CV153-C, 2006 WL 2443685, at *2 (W.D.N.C. Aug. 22, 2006) (holding that a party in response to a Federal Rule 30(b)(6) notice could not designate prior deposition testimony without propounding party's consent). - 19 -

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An RCFC 30(b)(6) deposition is not limited by personal knowledge. "The persons so designated shall testify as to matters known or reasonably available to the organization." RCFC 30(b)(6) (emphasis added). It is the Government's "duty to present and prepare an [RCFC] 30(b)(6) designee" who has knowledge that "goes beyond matters personally known to that designee or to matters in which that designee was personally involved." A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No. 97CIV4978LMMHBP, 2002 WL 1041356, at *2 (S.D.N.Y. May 23, 2002); see also EEOC v. Thorman & Wright Corp., __ F.R.D. __, No. 06-2412-JWL-DJW, 2007 WL 1638602, at *4 (D. Kan. June 5, 2007) ("[P]ersonal knowledge of the designated subject matter by the selected deponent is of no consequence."); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995) (admonishing party for failing properly to prepare Federal Rule 30(b)(6) designee who had limited personal knowledge regardless of "the difficulty of investigating the subject matter requested" and rejecting that party's apparent view that "it can satisfy 30(b)(6) by producing a witness with only selected information to offer and describe that information as the only relevant information available"). If the person designated by the Government does not possess personal knowledge of the topics, or if the person who possessed knowledge is no longer employed by the Government or has died, the Government is still obligated to prepare an RCFC 30(b)(6) designee. See Taylor, 166 F.R.D. at 360-61. Because the RCFC 30(b)(6) procedure is defined by rule, the duty to prepare an individual is not, on its own, objectionable as burdensome, see Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 1054279, at *3 (D. Kan. Apr. 9, 2007) (slip copy) ("[T]his is merely the result of the concomitant obligation from the privilege of being able to use the corporate (or other organizational) form in order to conduct business."), or onerous, see ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007

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WL 1732369, at *4 (D. Kan. June 11, 2007) ("[T]he burden upon . . . a responding entity is justified since an [organization] can only act through its employees."). The requirement of preparing for an RCFC 30(b)(6) deposition "negate[s] any possibility that an inquiring party will be directed back and forth from one corporate representative to another, vainly searching for a deponent who is able to provide a response which would be binding upon that corporation." See id. at *4. Moreover, the fact that an RCFC 30(b)(6) designee has previously been deposed in his individual capacity does not constitute "good cause" for a protective order. See id. at *3 (holding the fact that individual depositions of corporate designees had already occurred did not constitute good cause under Federal Rule 26(c); see also Capital Props., Inc., 49 Fed. Cl. at 613 (granting a motion to compel designation of an RCFC 30(b)(6) representative where opposing party contended a prior witness had addressed the topic at issue in his personal capacity, stating the organization "must designate a person(s) to `testify on its behalf'") (emphasis added). II. The Government Cannot Show "Good Cause" To Merit A Protective Order When The Government Itself Caused The Burden.

The Government has no one to blame for this situation but itself. For over five months, the Government had the duty to identify and produce an RCFC 30(b)(6) designee(s) on behalf of the USDA for the disputed topics. With the exception of Topic ## 3 and 21, it failed to do so. Now, instead of accepting this responsibility, the Government is scrambling to come up with a way to escape the alleged "burden" of providing an RCFC 30(b)(6) deposition that it agreed to honor at the outset of deposition discovery. The Government has an obligation to comply with the RCFC 30(b)(6) deposition notice. Previous depositions of individuals do not excuse it from complying with this rule, nor should the Government be permitted to circumvent the

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consequence of its own delay by contending that the previous depositions of individuals make an RCFC 30(b)(6) deposition too burdensome. As cited in the Background section above, plaintiffs first proposed the use of RCFC 30(b)(6) in December 2006. (See docket entry # 31, at 5.) At the time of this proposal, only Dr. Smith's deposition had occurred. The Government agreed to the RCFC 30(b)(6) mechanism, stating that it "did not object to this approach." (See docket entry # 33, at 13.) A month after informing the Government that they wanted an RCFC 30(b)(6) designee(s) pertaining to certain policy decisions made by the USDA (Pls.' App. at 009-010), plaintiffs' served their Original 30(