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

Case 1:05-cv-00186-FMA

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Exhibit G

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IN TIIE UN£TEI) STATES COURT OF CLAIMS TRIAL DIVISION No. 80-A (FiLed February 29, 1980)

FILED
FEB2 9 1980

COURT OF CLAIM

RINCON BAND, et al. v. THE UNITED STATES

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Production of documents; requirement of particularity; good cause; attorney's work product; expert witness' research documents; Rules 71(a)(2)~ T-and (e)(2), 71(b)(2), 74(a)(2); 25r: U.S.C. § 7Ore. _ _..,

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ORDER OF TRIAl. JUDGE DENYING PLAINTIFFS' I~OTION FOR ORDER THAT DEFENDANT PROEUCE DOCUMENTS

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Plaintiffs move for an order pursuant to Rule 74 requiring defendant to produce Eor inspection and copying-all letters, papers, documents, maps, or records (i) which have been gathered, collected, or copied directly or indirectly from official files, records, or archives in the possession of any officer or department or c~urt Of the United States or committee of Congress~ (ii) which are now in the possession of defendant's expert anthropologist, Dr. Herbert l|arvey, 9r of any of his employees or investigators, (i[i) whle~have not ;llready been produced for ins~,ction ;111'I col)yLng l,y plaintLffs, and ([v) wll[ch r~[ate in any way to any issue in Docket 80-A, inching the history of agriculture and water development on the l~q Jol[a, Pala, Pauma, Rincon or San Pas~ual Reservations in California.
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Plaintiffs assert that the issue as to whether or not the United States is Liable for failure to protect ~T_alntiffs, water rights from infringement by non.-Indian over the period from 1894 to the present turns on the hi@ i

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agriculture and water development on the reservations from 1848, when Hexico ceded California to the United States, to date. To develop the relevant historical facts, plaintiffs have engaged an experienced arlthropologist and ethno-historian who has, among other things, been engaged in examining documents in federal recot'ds centers and archives in Southern California and Washington, D.C., over a 10-year period and has thus far collected approximately 5,000 pages of such documents. Plaintiffs believe, however, that significant gaps still exist in tile gover~iment documents plaintiffs' expert has c~lected -- due to poor indexing, poor copying, or the fact ~ha= some documents may no longer exist. While plaintiffs' expert is continuing her research at various federal records centers, plaintiffs seek access to all of the documents collected by defendant's expert anthropologist because "Plaintiffs could obtain such documents ,ouch more quickly and easily from Dr. Harvey than from anywhere else." Plaintiffs do not limit themselves to documents which ¯ ! ~ defendant ex~ to offer in evidence but demand access to rele~doeuments [n ,l~l, endant's possession "wh~ther ~)r not dffend~nt will rely on them as exllibits at trial." P~aintiffs concede that the various government departlnents where the original documents are located have been cooperative and thal "Some of the gaps could no doubt be filled by further archival research," but they prefer to obtain the,n from defendant's expert because further research by plaintiffs' witness

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"would be very time constuning ;iii~l expensive." In support of this motion, plaintiffs cite section 14 of the Indian Claims Commission Act of 1946 (25 U.S.C. § 70m). Such reliance is misplaced. That section provides for "full and free access" to government records, wherever located, but plaintiffs admit that such access has been provided ~o them and their expert. Nothing in tile section states that they are entitled to have the benefits of the labors of defendant's attorneys and their agents in selecting the documents plaintiffs deem pertinent to their case. Allowance of a motion for an order by this court for t~e production of documents requires a showing that there is good cause therefor. Rule 71(a)(2) and (e)(2). X11e good cause requirement entails a showing of need and not merely relevance to the issues. Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). There is no showin~, of need for production of Government's copies where the original documents or other evidence have been equally accessible to both parties if they are willing to exer~e~ssary effort to sort them out. Guilford N at£~ ~iK~nk Of~Greenshoro v. Southern Railway, 297 F.2d 9~1, (4thi Cir. 1962); Securities and Exchange Commis-

sion V, ,~amuel IT..qloan & Co., 369 F. Supp. 994, 995 (S.D.
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N.Y. [973). Production of documents should not be ordered "merely to serve the convenience of counsel, or as reassurance that counsel has overlooked notl~ing, or on a mere hope that

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the documents sought may be useful to the moving party." Flickinger v. Aetna Casualty & Surety Co., 37 F,R.D. 533, 535 (W,D. Pa. 1965), citing 2A Barton and Holtzoff, Federal Practice and Procedure, § 796 at 426-28 (Wright ed. 1961). The reasons advanced by plaintiffs do not show good cause here. Under Rule 74(a)(2) the motion must also "show with reasonable particularity * * * the documents or things desired." Reasonable particularity is defined to mean that "each such document or thing is so identified that its extraction frc~~ the files, or other method of identification and procurement,
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may reasonably be made by the officer or employee responsible therefor." A demand as broad as that made by plaintiffs here does not comply with the requirement of reasonable particularity. See Shakespeare Co. v. United states, 182 Ct. CI. 119, 389 F.2d 772 ([968). PLaintiffs' motion is also in conflict with the rule against required production of an attorney's work product in the absence o~emonstrated substantial need therefor. Hickman v;~, 329 U.S. 495 (1947). That rule Ls not confined to inflation or materials gathered or assembled by an
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attorney hut likewise covers the work product of his agents,
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representatives, investigators, or others retained for that purpose. United States v. Nobles, 422 U.S. 225, 238-39 (1975); Diversified Industries, Inc. v. Meredith, 572 F.2d

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596, 603 (8th Cir. 1977); l~urlin~ton Industries v. Exxon Corp., 65 F.R.D. 26, 42 (D. Md. 1974). And compare also Fed. R. Civ. P. 26(b)(3) and Advisory Committee note on that rule, 48 F.R.D. at 502 (1970). As was well-stated in McCarthZ v. Palmer, 29 F. Supp. 585, 586 (E.D.N.Y. 1939), aff'd on other grounds, I13 F. 2d 721 (2d Cir. 1940): While the Rules of Civil Procedure were designed to permit liberal examination and discovery, they were not intended to be made the vehicle through which one litigant could make use of his opponent's preparation of his case. To use them in such a manner would penalize the diligent and place a premium on laziness. And c__ff, also Mr. Justice Jackson, concurring in Hickman v. Taylor, supra, at 516: "Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary." Finally, plaintiffs argue that the work product rule does not apply with respect t,, experts expected to testify at trial, and that defendant's expect, Dr. llarvey, is subject to wide-ranging discovery of all documents which were reviewed in preparing :~.reports.
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Defendant states, however, that it llarvey as

has ~et decided whether or not [t will call Dr.

RuI~ 71 provides-6

~ (b) Scope of Discovery: Unless otherwise ordered by the court, the scope of discovery is as follows:

(2) Experts: (i) By means of written interrogatories in con--f-~mity with Rule 73, a party may require
i

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any other party (a) to identify each person who~n the other party exl~ects to call ;~s an expert witness and (b) to state the subject matter on which the expert is expected to test£fy. (iL) In relation to tile expert testimony to he adduced at the trial, the court, on its own motioz~ or the motion of a party, may require the submission or exchange of (a) statements of the proposed direct testimony of expert witnesses, in narrative or question and answer form, or (b) sun~naries of experts' reports. Every such summary shall contain the substance of the report in terms of conclusions and the principal facts deemed to support the expert's conclusions. It is noted that the rule only provides for discovery of the proposed direct testimony of expert witnesses oc su~n~:~ of their reports. Presumably the court retains discretion ~o allow the use of depositions or to require the production of documents under the introductory phrase "Unless otherwise ordered". However, it is not at all likely that the exercise of that discretion would be exercised to require the production of documents for the purposes for which plaintiffs now seeks them and without regard to the work product restriction. Rule 26(b)(3) of the Fed. R. Civ. P. is in effect a codificaClon~efinement oE the rationale oE ]lickman v.

Cl~ava ~;!: 487~.2d 480, 482 (4 h Cir. 1973); Wright & Miller, Federal Practice a~d Procedure: Civil, § 2023 (1970). As
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such, the rule provides that discovery by one party of trial preparation documents of the other may be obtained "only upon a showing that the party seeking discovery has substantial

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need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Plaintiffs' allegations here are not consistent with any sucll showing. Fed. R. Civ. P. 26(b) (4) (A) with respect to experts who are expected to testify [s similar to this court's Rule 71(b)(2). It permits interrogatories to obtain the names of expert witnesses, the subject matter of the testimony of each, the substance of the facts and opinion to which the expert is expected to testify and a summary of tile grounds for each opinion. If ~ court orders further discovery by other means, it may be suSje¢ to restrictions as to scope and to provisions for fees and expenses. Certainly there is nothing in this rule that gives to a party gratis the right to roam through the reseach materials obtained by the other side from public sources through the diligence of its retained expert, in order to complete its own case. Indeed, the Advisory Committee note accompanying the draft of that rule states that while discovery of expert witnesses may~:be n~d to prepare for effective cross-examination and r~i=al, a party "can hardly hope to build his case out o~ ht.~ponen=~s experts," and that if a court allows discovery in addition to the interrogatories the court retains "ample
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power to regulate its timing and scope and to prevent abuse." (48 F.R.D 504 (1970).) Fed. R. Civ. P. 26(b) (4) (B) allows discovery of facts known by a non-medical expert who has been employed by another party

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in prepar, rLon For t. ri.-~l :in~l wll,~ i'; ,Ic~I: expected to he c-~[[e,I a.'; a witness aI: trial "only * * * upon a sI~owing of exceptional cLrcumstances under whLch it is impractLcable for the party seekLng discovery to obtain facts or opinions on the same subject by other means," and then only upon payment of a fair portion of the f~,cs ;and e×pcnses reasonably incurred 1)y the other p:it-ty in ~bt;~Lniny~ such facts or opinions by the expert. Thus far this rule ha,'; not been adopted by this court; but even assuming that by analogy its substance may be applied Ln a partitular case, nor.Ill.rig in the circ,lmstances alleged by plaint.fEs bring them within /is scope.
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Accord [ngly, IT [.S ORDEI',ED that plaintiffs' motion For or.]er that defendant produce ~locument.s be denied.

Phili~R. Miller Trial Judge

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