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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CADDELL CONSTRUCTION CO., INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) No. 04-461C ) (Judge Futey) ) ) )

DEFENDANT'S MOTION TO COMPEL Pursuant to RUSCFC 37(a), defendant, the United States, respectfully requests the Court to compel the plaintiff ("Caddell") to produce the information described in the informal discovery request that is attached to this motion as exhibit A. Pursuant to RUSCFC Appendix A (V)(10), we certify that we have conferred in good faith to attempt to resolve this dispute prior to filing this motion. STATEMENT OF FACTS Caddell initiated this case in March 2004, slightly more than two years ago. A. 12.1 A Joint Preliminary Status Report

was filed on September 29, 2004, that requested a discovery period of eight months subsequent to the Court's approval of the

Citations to the appendix to this motion are "A. #." Although most of the documents relied upon herein are a matter of record, having been previously filed with the Court, for convenience we are including excerpts from those documents in our appendix.

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discovery plan.

A. 14-15.

The case was transferred to the

current judge, who ordered an updated status report to be filed on December 29, 2004. A. 16. The joint status report of

December 29, 2004, noted that defendant was preparing to produce documents to Caddell in January 2005, and requested a discovery period through June 2005. A. 17-18. After a status conference

with the parties, the Court ordered that discovery should continue through July 2005. A. 19.

On August 15, 2005, pursuant to the Court's order for a status report, the parties reported three things. A. 20. First,

that Caddell had concluded its review of defendant's documents.2 Id. Second, the status report indicated that Caddell had

retained experts (i.e. after the close of the initial discovery period) and recently disclosed their identities to the defendant, seeking to file expert reports on October 31, 2005. Id. Third,

that following the disclosure of Caddell's expert reports (i.e. after October 31, 2005), Defendant will determine those fact and/or expert witness depositions it wishes to take

Caddell's document review consisted of receiving a large volume of electronic documents from the defendant and Caddell conducting a review of the Government's "design documents" in Washington, D.C. Caddell chose not to take any depositions during fact discovery. A. 61. - 2 -

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and will conclude those depositions in November 2005. At that time, defendant will also make a decision regarding the need to retain its own experts. A. 20. The parties also proposed "to engage in further discovery (fact and expert) until December 1, 2005, at which time the parties will advise the Court of the status of the case, including any additional discovery and the scheduling of a trial date." The Court approved this plan. A. 21. Id.

Caddell's inability to meet the October 31, 2005, deadline nullified the approved schedule and caused Caddell to seek additional time for its expert witnesses to work.3 A. 22-23.

Without objection from the defendant, on October 18, 2005, Caddell sought to have the schedule moved back two and a half months to conclude with a status report to the Court on February 15, 2005. Id. Again, Caddell agreed that, following Caddell's

disclosure of experts reports (i.e. after December 2, 2005), "defendant may retain its own experts." A. 23.

Caddell expressly indicated that the delay was caused in part "because of Caddell's expert's schedule" and that "[d]efendant has assisted Caddell in obtaining documents needed by Caddell's expert to complete his report." - 3 -

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Caddell's experts produced reports, notifications of which were filed with the Court on December 2, 2005. A. 24-25.

Defendant's counsel scheduled, then took, the depositions of Caddell's fact and expert witnesses in late January 2006, after conducting a brief one-day document inspection at Caddell's counsel's office to assist in preparing for the depositions. 61. Defendant then notified Caddell that it was retaining A.

experts and on February 14, 2006, the parties jointly notified the Court and proposed a schedule to permit the defendant's experts to perform their work ­ which was approved by the Court on February 21, 2006. A. 26-28.

After a review of the documents in defendant's counsel's possession, and a preliminary assessment of Caddell's claims and experts reports, on March 23 and 24, 2006, defendant's experts conducted an inspection of approximately 20 boxes of documents stored in Jackson, Mississippi, at Caddell's counsel's office. A. 62. During that document review, defendant's counsel met with

Caddell's counsel and agreed to propose a modified schedule that was eventually based upon three factors: First, defendant's

experts did not find the documents in Jackson to be complete or sufficient for a detailed review of Caddell's claim, particularly

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the damages elements.4

Second, defendant's experts' schedules

were such that quick completion of their work was impossible, even if complete information had been produced in Jackson. Third, counsel for the parties obtained an indication from the Court's office that the Court was not available for trial until 2007. A. 62. Based upon those three factors, the parties filed

a status report on April 28, 2006, that proposed a new schedule to permit defendant's experts to perform their work, and for other pretrial activities to take place, leading up to a trial in early 2007.5 A. 31-32. In the April 2006 status report,

4

Caddell's initial disclosure said: Copies of all documents, data compilations and tangible things in the plaintiff's possession, custody or control that are relevant to the disputed facts alleged with particularity in the pleadings are located at plaintiff's counsel's office and will be produced to defendant at its convenience and are too voluminous to copy and produce.

Although this statement is not necessarily inaccurate if limited to "the disputed facts alleged with particularity in the pleadings", the documents in Caddell's counsel's office are not sufficient to audit Caddell's damages claims, or to fully evaluate the delay elements of Caddell's claim, which are not "alleged with particularity in the pleadings." The parties understand that the modification to the existing pretrial schedule was more properly filed as a joint motion to modify the scheduling order rather than as a joint (continued...) - 5 5

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Caddell, for the first time, indicated to the Court a desire to submit "rebuttal reports" in response to defendant's expert's reports. Id., A. 30.

Shortly after defendant's experts obtained copies of the documents that were reviewed in Jackson, defendant propounded an informal discovery request for additional information.6 33, 34. A. 1-11,

The information sought can generally be described as

garden-variety claim-audit materials for Caddell's claimed damages7 and typical scheduling materials relevant to the delay and loss of productivity components of Caddell's claim. Id.

Defendant indicated flexibility in the manner in which this information was produced ­ either as a package of documents

(...continued) status report and apologize for any inconvenience this may have caused the Court. Although the request was in a slightly different format, the information requested was the same as the information contained in the appendix to this motion at pages 1-11. In response to Caddell's general refusal to provide the requested information, explanations of the relevance of the requested information were added. Id. Caddell's claim seeks damages on behalf of five different companies; Caddell, Steel Services, EEE Detailing, American Metal Works, and Williams Beasley. With the exception of Steel Services and American Metal works, which are related companies, there are no fewer than four separate sets of financial records related to the damages sought in this case. A. 13. - 6 7 6

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provided by Caddell to the defendant, or as a series of one-day visits to each company by defendant's experts to examine the information as it is kept in the ordinary course of business. 33, 34, 36, 38, 40, 43. Without posing a specific objection to any of the requests, Caddell first refused to provide any of the information requested or to permit an inspection of the claimant-companies' records, demanding without meaningful explanation that our request for information be "much narrower." A. 35. Caddell then made A.

several vague and evolving arguments, discussed below, to the effect that the document request was somehow improper or untimely. A. 35, 37, 39, 42. After a series of email

communications between counsel (A. 33, 34, 36, 38, 40, 43), on May 15, 2006, Caddell indicated that it had "inquired" about further documents (apparently not having done so previously), and offered to produce a limited number of additional documents, again in Jackson, Mississippi (demonstrating that the documents previously produced were, indeed, incomplete). A. 44-47. At the

same time, however, Caddell has only "referred" our request to a lawyer for a second-tier subcontractor8 (A. 46) and continued to

8

Obviously, if Caddell' seeks to recover damages on behalf (continued...) - 7 -

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refuse to produce other relevant and discoverable information, asserting primarily (and incorrectly) that the defendant is required to obtain these documents from the VA or the Defense Contract Audit Agency ("DCAA"). A. 46-47. Given the need to

establish a complete schedule for pretrial proceedings, and with a fixed trial date of February/March 2007, we believe that continued attempts to persuade Caddell to make the required fulldisclosure of information is not likely to be satisfactory, and would involve the expense of yet another trip to Jackson to inspect a still-incomplete set of documents, so we are filing this motion instead. ARGUMENT I. The Information We Seek Is Plainly Discoverable

In the early stages of the case, Caddell was obligated by Rule 26(A)(1)(c) to provide a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under RCFC 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is

(...continued) of a subcontractor, it is obligated to produce information related to that subcontractor's claim in discovery, not merely to "refer" us to the subcontractor's counsel. Rule 26(A)(1)(c). - 8 -

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based, including materials bearing on the nature and extent of injuries suffered. (Emphasis supplied). Caddell's initial disclosure promised:

A computation of damages claimed by plaintiff is attached hereto as Exhibit "A" and made a part hereof. Plaintiff agrees to make available to defendant at defendant's convenience for inspection and copying all documents or other evidentiary material not privileged or otherwise protected on which such computation is based. A. 10. Caddell's "exhibit A" (A. 13) is a simple summary of the

categories of claims presented, and includes, among others, three separate overhead items, three discrete subcontractor claims (that are unexplained), two "efficiency losses," a "preparation cost" that is an "estimate" and the entire summary "excludes Caddell's mark-up" which Caddell, apparently, wishes to keep as a secret. A. 13.

Clearly Caddell was obligated, even without the list of information provided by the defendant (A. 1-11), to make all documents relevant to its damages claims available for inspection. The information sought by our experts is exactly the

type of information discussed in Rule 26(A)(1)(c) and, despite our repeated admonition to Caddell that this information is discoverable (A. 33, 34, 36, 38, 40, 43), Caddell has failed to comply with its obligation. Of course, in addition to Caddell's - 9 -

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obligation under Rule 26(A)(1)(c), the defendant is entitled to the information it seeks under Rule 34. Based upon the foregoing, Caddell's refusal to provide complete disclosure is unfounded and Caddell should be compelled to provide full disclosure to the defendant. Because we have

been forced to file a motion to compel, pursuant to Rule 37(a)(4)(A), we also seek the costs associated with the preparation of this motion (cost data will be submitted upon the Court's order to that effect), and a suspension of the pretrial schedule unless and until the defendant notifies the Court that Caddell has fully complied with the Court's order to compel. II. Caddell's "Objections" Are Ill-Founded

With limited exceptions regarding Caddell's enigmatic "markup" claim,9 and the information that Caddell finally did agree to produce (A. 45-47), Caddell has consistently refused to produce the requested information without even asserting that the requested information is not discoverable. Id.

Instead of asserting any legitimate objection to disclosure, Caddell has only offered excuses that suggest that Caddell's

Caddell's initial disclosure does not depict a markup amount (A. 13), yet Caddell's counsel has suggested that a claim for Caddell's "markup" exists without specifying what it is. A. 39, 46. - 10 -

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discovery obligations are eliminated by the timing of the defendant's requests, or otherwise by the defendant's "lack of diligence." Id. Although these objections are facially

illegitimate (no matter the timing of the defendant's requests, and certainly with almost a year to go before trial, the defendant is clearly entitled to the information pursuant to Rule 26(A)(1)(c)). Because Caddell has not complied with Rule At the risk

26(A)(1)(c), our motion to compel should be granted.

of overindulgence, however, we offer the following discussion of Caddell's excuses. A. Our Requests Are Not Untimely

Despite ample time (approximately one year) between our requests of May 2006 (A. 1-11) and the scheduled trial date of February/March 2007, Caddell has asserted that our request for the information required to be disclosed pursuant to Rule 26(A)(1)(c) is untimely. A. 42. The best Caddell can do to

"support" this argument appears to be the following: Defendant's experts did not, to Caddell's knowledge, even start their work on this project until March 23, 2006 - - less than one month before their expert reports were due and almost two months after the discovery deadline.

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A. 48.

Caddell's statement is based upon the March 2006 date

that our experts actually inspected the incomplete information provided in Jackson, Mississippi, and is, therefore, meaningless. Our status reports clearly depict the process and timing of receipt of Caddell's tardy expert reports (December 2005), our retention of our own experts (February 2006). A. 20, 23, 26.

After being retained in February 2006, our experts' document inspection in late March 2006 and subsequent request for additional information in early May 2006 is hardly untimely.10 Caddell's assertion that the document inspection occurred "two months after the discovery deadline" is similarly unfounded inasmuch as the parties agreed in the February 2006 status report only that "[f]act discovery has been completed" (A. 26) and, obviously, Caddell understood that our experts' work involved gathering information, including the inspection of documents in Jackson in March 2006. Why Caddell appeared to recognize that

our experts were entitled to examine documents in Jackson ­ but nowhere else ­ has not been explained. In addition, the passage

of the "discovery deadline" upon which Caddell now relies did not

Our experts examined and analyzed the project documents already in defendant's counsels possession (which had been produced to Caddell) prior to the March 2006 inspection in Jackson. A. 62. - 12 -

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prevent Caddell from agreeing in the April 2006 status report that the defendant's experts would continue their work until July 14, 2006. A. 31-32.

Caddell has also cast the defendant in the role of delaying the case on the whole. A. 44-45. As the record clearly

reflects, however, it was Caddell who did not even identify experts until after the end of the initial discovery period (A. 20), and it was Caddell who obtained additional time (twice) for its experts to conclude their work. A. 20, 22. It is

disingenuous, at least, for Caddell to blame the defendant for delaying this case and to refuse to disclose discoverable information, all after "[d]efendant has assisted Caddell in obtaining documents needed by Caddell's expert to complete his report. . . ." B. A. 23. The Defendant Is Entitled To Discovery In Litigation Regardless Of Whether Information Was Available Previously

Caddell has also refused to produce the requested information because, according to Caddell, we must obtain that information from the VA or DCAA. A. 45-47. Caddell has

suggested that it would somehow be burdensome to produce information that DCAA previously examined "3 times." A. 42.

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This is a bogus argument for at least three reasons: First, Caddell's damages have been modified or revised no fewer than six times, four of which occurred after the DCAA audited Caddell's claim.11 Second, DCAA's audit did not include examining the

records of American Metal Works and Williams-Beasley and was, therefore, incomplete. A. 51. Third, and most important, the

fact that DCAA conducted an audit as part of the defendant's review of the claim at the administrative level in no way relieves Caddell of its discovery obligations before this Court. Rule 26(A)(1)(c) does not make an exception for damages claims previously audited by DCAA (even if the claim had not been revised multiple times after the DCAA audit as has occurred

Caddell's REA of October 1997 sought damages of $2,907,121. A. 52-53. Caddell's revised REA of August 1998 damages of $3,497,100.37. A. 54. Caddell's June 1999 response to the DCAA audit made a revision downward in the claim amount of approximately $100,000 - $200,000. A. 55-56. Apparently unaware of its own 1999 claim revision, Caddell's complaint of March 2004 sought damages of $3,497,100.37 (the August 1998 amount). A. 12, 57. Caddell's initial disclosures of July 2004 sought damages of $3,497,100.37 but "excludes Caddell's mark-up." A. 13. At his January 2006 deposition, Caddell's claims consultant, Mr. Vinson, testified that a previously-undocumented revision "slightly lower" to Caddell's damages had been made "only compiled today". A. 57.

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here), and plainly requires Caddell to produce the information that we seek. As a practical matter, although DCAA's work is helpful, and our review of DCAA's work-paper files may prove useful in limiting the number of documents that we actually copy from Caddell, we do not intend to rely solely upon DCAA's prior audit to defend this case. This was, of course, obvious to Caddell

when we identified an independent damages expert in February 2006. In short, Caddell's argument that we are required to

obtain information from VA or DCAA that Caddell is obligated to produce under Rule 26(A)(1)(c), is simply unfounded. C. The Information We Seek Is Not Irrelevant

As stated above, Caddell has not even argued that the majority of the information we seek is not discoverable. 47. A. 45-

The only exception appears to be Caddell's response to our

request for Caddell's (the prime contractor's) financial statements, that "Caddell's only claim in this matter is a markup on the total claim. irrelevant." A. 46. Therefore these documents are Caddell's contract (general conditions,

section 1.34 (A. 59-60)) requires Caddell to submit "cost and pricing data" with its change proposals (i.e. claims), so Caddell's financial statements clearly are "relevant" to a claim - 15 -

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for "mark-up on the total claim" and are discoverable under Rule 26(A)(1)(c). CONCLUSION For the foregoing reasons, we respectfully request the Court to grant our motion and compel Caddell to fully produce the information described in appendix pages 1-11, we also seek the costs associated with the preparation of this motion (cost data will be submitted upon the Court's order to that effect), and that further proceedings in the case made contingent upon our reporting to the Court that Caddell has fully complied with the Court's order. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Bryant G. Snee BRYANT G. SNEE Assistant Director s/Brian S. Smith BRIAN S. SMITH Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Tele: (202) 616-0391 Fax: (202) 353-7988 - 16 -

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Attorneys for Defendant May 19, 2006

CERTIFICATE OF FILING I hereby certify that on May 19, 2006, a copy of foregoing "DEFENDANT'S MOTION TO COMPEL" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Brian S. Smith

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APPENDIX

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REQUEST FOR PRODUCTION OF DOCUMENTS

Documents needed from Caddell List of all disbursement transactions from Caddell to EEE Detailing under the contract/subcontract, along with supporting documentation. [To determine the extent, if any, that EEE has been compensated for alleged damages.] Caddell financial statements, accompanying schedules, and supplementary information, with audit, review, or compilation reports, internal control reports, and management letters as of and for the years ended December 31, 1995, 1996, 1997, and 1998. [If Caddell is waiving any claim for direct and indirect costs on this claim, these financial statements are not needed.] Copies of all reports on audits of any Caddell activities (contracts, subcontracts, grants, indirect costs, proposals, and so forth) performed by any auditors--internal or external, private or governmental--from January 1996 to present. [If Caddell is waiving any claim for direct and indirect costs on this claim, these financial statements are not needed.] Copies of supporting documentation for Change Order #2 between Caddell and SSC. [SSC and Caddell were beginning litigation shortly after they executed a contract. Copies of the most recent shop drawing/submittal log (all logs are NOT necessary because this document should have been continually updated reflecting submittals from the start of the project through project completion). [While the VA/AE probably has their version of the submittal/shop drawing log, the contractor's version often differs from the version the owner/AE used on the project. Differences between the submittal logs maintained by Caddell vs. VA is noted in the project records.] Copy of Caddell's RFI log reconciling the RFI numbers used by SSC vs. those used by Caddell for the VA. [The contractor always reconciles the RFI numbers used by the subs vs. the general contractor's RFI numbers. The VA would not have known SSC's RFI numbers because the RFIs were submitted by Caddell using their (Caddell) numbering system.] Copies (preferably electronic) of all CPM schedules for the duration of the project including the baseline schedule and subsequent schedule updates. [The schedules that were provided in .pdf form are partial schedules showing only the structural steel and NOT the complete project. Also, the Jackson files contained fragmented schedules in MS Project format, Primavera format, and the VA CPM Automated Control System format so there should be electronic files ­ maybe at Caddell. The schedules are needed to perform the schedule delay analysis.]

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REQUEST FOR PRODUCTION OF DOCUMENTS Documents needed from SSC Copy of the contract/subcontract/purchase order between SSC and EEE Detailing; plus all modifications and related correspondence. [To determine the terms of the contract/subcontract with respect to any provisions for claims, changes, mark-ups, and so forth. To identify any allegations between the parties regarding causes of delays or other disagreements.] Copy of the contract/subcontract between SSC and Williams-Beasely Erectors; plus all modifications and related correspondence. [To determine the terms of the contract/subcontract with respect to any provisions for claims, changes, mark-ups, and so forth. To identify any allegations between the parties regarding causes of delays or other disagreements.] List of all disbursement transactions from SSC to EEE Detailing under the contract/subcontract, along with supporting documentation. [To identify amounts paid for contract work and changes and any disputes over payment between the parties.] Copies of all SSC time distribution reports and payroll data for the period from January 1996 through December 1997. [To assess the amount of productive and nonproductive time for SSC employees, and hours worked on base contract work vs. change order work.] Copies of all SSC production reports for the period from January 1996 through December 1997. [To assess the amount of productivity during these periods.] Copies of supporting documentation for the assertions that SSC bid overhead at a rate of 200% for the VA project and started bidding overhead at a rate of 235% for projects in late 1996. [To evaluate and test these assertions.] Copies of all notes, memoranda, and calculations supporting SSC's bid on the VA project. [To evaluate and test SSC's assertions regarding the bases upon which it planned and anticipated performing the work; to evaluate and test the reasonableness of certain elements of SSC's bid.] Copies of all supporting documentation for the claimed SSC cost of subletting, including actual subletting costs, actual shipping costs, evidence of sales taxes paid to the State of Tennessee, and support for SSC's estimated costs of producing the subletted items, including estimated hour, estimated labor rate, estimated overhead rate, and estimated fixed cost not recovered. [To evaluate and test these parts of SSC's claim and to evaluate and test the assertions underlying these parts of SSC's claim.] Copies of all supporting documentation for the SSC tonnage-to-date amounts, man-hours per ton calculations, and other elements of the SSC efficiency loss calculations. [To evaluate and test these parts of SSC's claim and to evaluate and test the assertions underlying these parts of SSC's claim.]

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REQUEST FOR PRODUCTION OF DOCUMENTS

Copies of supporting documentation for SSC's other projects budgeted and actual manhours and inefficiency man-hours used in the SSC efficiency losses on other projects calculations. [To evaluate and test these parts of SSC's claim and to evaluate and test the assertions underlying these parts of SSC's claim.] Copies of supporting documentation for SSC's additional direct payments to EEE ($268,007.50). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of supporting documentation for SSC's costs of electronic data ($15,000.00). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of supporting documentation for SSC's other costs ($121,769.25). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of supporting documentation for SSC's claimed preparation costs ($153,884). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] SSC financial statements, accompanying schedules, and supplementary information, with audit, review, or compilation reports, internal control reports, and management letters as of and for the years ended December 31, 1995, 1996, 1997, and 1998. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles.] Copies of all reports on audits of any SSC activities (contracts, subcontracts, grants, indirect costs, proposals, and so forth) performed by any auditors--internal or external, private or governmental--from January 1996 to present. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles or other bases of accounting.] Copies of all claims, requests for equitable adjustment, and change order proposals that SSC asserted against any other projects for work performed during 1996 and 1997. [To determine if SSC properly allocated alleged unabsorbed overhead and alleged inefficiencies.] Copy of the certified claim transmitted to Caddell on February 3, 1998 (the scanned pdf version of the REA is dated October 31, 1997 and has handwritten notes/markings on it,

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REQUEST FOR PRODUCTION OF DOCUMENTS but it appears from project correspondence that a claim was submitted on 2/3/98). [To ensure that the correct and completion version of the claim is being evaluated.] Copies of all certified payrolls for SSC and its subcontractors. [To validate the portion of the claim alleging loss of efficiency.] Copies of SSC's plant production schedules (planned/baseline and updates) for the VA project and all other projects in-shop for the entire delay period claimed by SSC. [To validate the portion of the claim alleging loss of efficiency, and allegations of delay.]

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REQUEST FOR PRODUCTION OF DOCUMENTS Documents needed from EEE Detailing Copies of all invoices from EEE Detailing to Caddell/SSC under the contract/subcontract. [To determine the extent, if any, that EEE has been compensated for alleged damages.] Copies of all correspondence related to EEE Detailing invoices under the contract/subcontract. [To identify any allegations between the parties regarding causes of delays or other disagreements.] Copies of all cost data and time logs maintained by EEE Detailing related to extra handling of RFIs under the contract/subcontract. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of all EEE Detailing time sheets for the period April 1996 through September 1997. [To evaluate and test SSC's assertions related to unproductive time.] Copies of travel expense vouchers and supporting documentation for the additional engineering travel costs ($25,703). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of time distribution and payroll records supporting the additional engineering project management costs ($89,654.25). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of invoices and canceled checks for additional engineering printing costs ($6,412). [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Supporting documentation for the unpaid principal salaries of $50,000 included in EEE Detailing overhead costs and $100,000 included in the inefficiency damages calculations. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] EEE Detailing financial statements, accompanying schedules, and supplementary information, with audit, review, or compilation reports, internal control reports, and management letters as of and for the years ended December 31, 1994, 1995, 1996, 1997, and 1998. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles.] Copies of all reports on audits of any EEE Detailing activities (contracts, subcontracts, grants, indirect costs, proposals, and so forth) performed by any auditors--internal or external, private or governmental--from January 1996 to present. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the

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REQUEST FOR PRODUCTION OF DOCUMENTS claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles or other bases of accounting.] Copies of all claims, requests for equitable adjustment, and change order proposals that EEE Detailing asserted against any other projects for work performed during 1996 and 1997. [To determine if SSC and EEE Detailing properly allocated alleged delays, alleged unabsorbed overhead, and alleged inefficiencies.] Copies of EEE's RFI, change order, and submittal/shop drawing logs. [To determine the extent of alleged delays in detailing the structural steel.]

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Document 42

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REQUEST FOR PRODUCTION OF DOCUMENTS Documents needed from Williams-Beasely Erectors Copies of all supporting documentation for the Williams-Beasely Erectors claimed costs of $208,322.73. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Williams-Beasely Erectors financial statements, accompanying schedules, and supplementary information, with audit, review, or compilation reports, internal control reports, and management letters as of and for the years ended December 31, 1995, 1996, 1997, and 1998. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles.] Copies of all reports on audits of any Williams-Beasely Erectors activities (contracts, subcontracts, grants, indirect costs, proposals, and so forth) performed by any auditors-- internal or external, private or governmental--from January 1996 to present. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles or other bases of accounting.] Copies of all claims, requests for equitable adjustment, and change order proposals that Williams-Beasely Erectors asserted against any other projects for work performed during 1996 and 1997. [To determine if SSC and Williams-Beasely Erectors properly allocated alleged damages.]

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Filed 05/19/2006

Page 26 of 80

REQUEST FOR PRODUCTION OF DOCUMENTS Documents needed from American Metal Works Copy of the contract/subcontract between SSC and American Metal Works; plus all modifications and related correspondence. [To determine the terms of the contract/subcontract with respect to any provisions for claims, changes, mark-ups, and so forth. To identify any allegations between the parties regarding causes of delays or other disagreements.] Copies of supporting documentation for the $83,755 of lost overhead being claimed by American Metal Works. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.]

Copies of supporting documentation (time and attendance records; payroll records; calculations) for the 2,000 hours of unabsorbed overhead being claimed by American Metal Works. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of supporting documentation for the assertion that American Metal Works wage rates increased by $1.00 per hours in 1997. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] Copies of supporting documentation for the assertions that American Metal Works overhead rates were 200% in 1996 and 230% in 1997. [To evaluate and test this part of SSC's claim and to evaluate and test the assertions underlying this part of SSC's claim.] American Metal Works financial statements, accompanying schedules, and supplementary information, with audit, review, or compilation reports, internal control reports, and management letters as of and for the years ended December 31, 1995, 1996, 1997, and 1998. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles.] Copies of all reports on audits of any American Metal Works activities (contracts, subcontracts, grants, indirect costs, proposals, and so forth) performed by any auditors-- internal or external, private or governmental--from January 1996 to present. [To evaluate the support for claimed indirect costs and the claimed indirect cost rate; to evaluate the claimed unabsorbed overhead; to identify any accounting system and internal control weaknesses; to evaluate contingency disclosures; and to evaluate job cost and profitability information prepared under generally accepted accounting principles or other bases of accounting.] Copies of all claims, requests for equitable adjustment, and change order proposals that American Metal Works asserted against any other projects for work performed during

Appendix11 defendant's motion to compel Page 8 of 62 Page 8 of to

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Document 42

Filed 05/19/2006

Page 27 of 80

REQUEST FOR PRODUCTION OF DOCUMENTS 1996 and 1997. [To determine if SSC and American Metal Works properly allocated alleged unabsorbed overhead.]

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Document 42

Filed 05/19/2006

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REQUEST FOR PRODUCTION OF DOCUMENTS Documents needed from Construction Mediation Services Copies of all workpapers prepared by and other information relied upon by Construction Mediation Services in preparing the REA. [To evaluate and test the accuracy and veracity of al elements of SSC's claim; to enable the conclusions and bases for the conclusions to be evaluated and tested.]

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Document 42

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REQUEST FOR PRODUCTION OF DOCUMENTS Documents that MAY be found at the VA Copies of approved REAs for any project time extensions between the VA and Caddell. Copies of any REAs submitted by Caddell to the VA for subcontractors other than SSC. Copies of notices of defective and/or rejected work for SSC and its subcontractors. Copies of contract non-compliance notices for SSC and its subcontractors. Copies of monthly CPM schedule narratives from Caddell to the VA. Copies of any monthly progress reports prepared by Caddell for the VA. Electronic copies of the schedule of values/progress payments for the duration of the project.

Appendix to defendant's motion to compel Page 11 of 62 Page 11 of 11

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Document 42

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SUMMARY

The additional cost is summarized as follows below: A. B. C. Addl Engineering cost Revised 6-17-98 Delay Cost to the Fabricator
(Unabsorbed Overhead)

$404,776.75 $800,199.00 $427,966.00

Loss of Overhead Due to the Rescheduled Project Being Further Delayed Subcontractor Claims 1. EEE Detailing Services, Inc. - Revised 6-17-98 2. Williams-Beasley Erection 3. American Metal Works Other Direct Cost 1. Increase in Overhead Rates from 1996 to 1997 2. Increased Cost as a Result of Subletting 3. Efficiency Losses a. This project b. Other projects Preparation Cost (Estimate) Subtotal Profit Bond Disputes Act Interest* Claim Amount $146,853.75 $208,322.73 $141,763.00 $122,500.00 $207,527.85 $164,747.83 $279,732.15

D.

$496,939.48

E.

$774,507.83 $153,884.00 $3,058,273.06 $305,827.31 $33,000.00 $100,000.00 $3,497,100.37**

F.

*
**

A six-month allowance is provided for Disputes Act Interest. be adjusted to final time, rates and amounts. Claim Amount excludes Caddell's mark-up.

The amount will

EXHIBIT "A"

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Case 1:04-cv-00461-BAF

Document 20-1 Filed 05/19/2006 Page 32 of 80 42 Filed 09/29/2004 Page 1 11

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Diane Gilbert Sypolt)

SUPPLEMENTAL JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A, Rules of the United States Court of Federal Claims and this Court's September 16, 2004 Order, the parties submit the following Supplemental Joint Preliminary Status Report in response to questions set forth in paragraph III(4) of Appendix A and this Court's May 12, 2004 Chambers Procedures Order. a. Jurisdiction:

The parties currently perceive no jurisdictional defects in this case. b. The Consolidation: parties do not believe that this case should be

consolidated with any other case. c. Bifurcation:

The parties do not believe that the trial of liability and quantum should be bifurcated.

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Document 20-1 Document 42

Filed 05/19/2006 Filed 09/29/2004

Page 33 of 80 Page 10 of 11

Discovery: The parties request a discovery period of eight months, commencing with the approval of this joint preliminary status report. The parties propose that expert reports be due 70 days

before the end of the discovery period, with expert depositions to take place thereafter. The parties also propose that they file a

joint status report proposing further proceedings within 30 days after the close of discovery. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Bryant G. Snee BRYANT G. SNEE Assistant Director s/Brian S. Smith BRIAN S. SMITH Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 616-0391 Fax: (202) 353-7988 Attorneys for Defendant

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10

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In the United States Court of Federal Claims
No. 04-461C (Filed December 14, 2004) *********************** * CADDELL CONSTRUCTION CO., INC.* * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *********************** ORDER This case has been re-assigned to the undersigned Judge. The parties are directed to file an updated report by Wednesday, December 29, 2004, concerning further proceedings. The court expects the parties to provide alternative dates for a status conference to be held in January. IT IS SO ORDERED.

s/Bohdan A. Futey BOHDAN A. FUTEY Judge

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Bohdan A. Futey)

SECOND SUPPLEMENTAL JOINT PRELIMINARY STATUS REPORT Pursuant to this Court's December 14, 2004 Order, the parties hereby further supplement their Supplemental Joint Preliminary Status Report as follows: 1. The parties hereby adopt and incorporate herein by

reference their Supplemental Joint Preliminary Status Report and their Corrected Joint Preliminary Status Report previously filed in this action except that defendant requests and plaintiff does not oppose a discovery deadline lengthy of June 30, in 2005 to accommodate and

defendant's

counsel's

trial

Daewoo

Engineering

Construction Co., Ltd. v. United States, Fed. Cl. No. 02-1914, which consumed the months of October and November, 2004 and which will resume in February-March 2005. 2. In the meantime, the parties have scheduled the production

of defendant's documents for January 19-20, 2005 at which time the parties also anticipate scheduling the date(s) for plaintiff's

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production

of

documents

to

defendant

and

tentative

dates

for

depositions. 3. Pursuant to this Court's request, the parties suggest that

the conference be held telephonically on January 19, 2005 while the parties are together for the defendant's production of documents. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Bryant G. Snee BRYANT G. SNEE Assistant Director s/Brian S. Smith BRIAN S. SMITH Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 616-0391 Fax: (202) 353-7988 Attorneys for Defendant s/David W. Mockbee MOCKBEE HALL & DRAKE, P.A. Lamar Life Building, 10th Floor 317 East Capitol Street Jackson, Mississippi 39201 601/353-0035 Telephone 601/353-0045 Facsimile Attorney for Plaintiff December 29, 2004

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2

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In the United States Court of Federal Claims
No. 04-461C (Filed February 3, 2005) *********************** * CADDELL CONSTRUCTION CO., INC.* * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *********************** ORDER Pursuant to the telephonic conference held on February 2, 2005, the following is so ordered: 1. 2. Discovery shall be completed by July 31, 2005. A joint status report indicating further proceedings shall be filed on Monday, August 15, 2005.

IT IS SO ORDERED.

s/Bohdan A. Futey BOHDAN A. FUTEY Judge

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Bohdan A. Futey)

JOINT STATUS REPORT Pursuant to this Court's February 3, 2005, Order, the

parties hereby submit this Joint Status Report: 1. Plaintiff has has completed its its review of and defendant's informally

documents,

retained

expert

witnesses

disclosed to defendant's counsel their identity and the substance of their anticipated testimony. reports on October 31, 2005. 2. Defendant will determine those fact and/or expert Plaintiff will file its experts'

witness depositions it wishes to take and will conclude those depositions in November 2005. At that time, defendant will also

make a decision regarding the need to retain its own experts. 3. The parties propose to engage in further discovery (fact and expert) until December 1, 2005, at which time the parties will advise the Court of the status of the case, including any additional discovery and the scheduling of a trial date.

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In the United States Court of Federal Claims
No. 04-461C (Filed August 18, 2005) *********************** * CADDELL CONSTRUCTION CO., INC.* * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *********************** ORDER Pursuant to Joint Status Report filed on August 15, 2005, the following is hereby ordered: 1. 2. Plaintiff shall file its experts' reports by Monday, October 31, 2005. Defendant shall conclude depositions by Wednesday, November 30, 2005, and may retain its own experts. Discovery shall continue until December 1, 2005, and the parties shall file a joint status report by Thursday, December 15, 2005.

3.

IT IS SO ORDERED.

s/Bohdan A. Futey BOHDAN A. FUTEY Judge

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Bohdan A. Futey)

PLAINTIFF'S UNOPPOSED MOTION FOR EXTENSION OF TIME Plaintiff, Caddell Construction Co., Inc. ("Caddell"), files its Unopposed Motion for Extension of Time, seeking an extension of those deadlines set forth in this Court's August 18, 2005 Order. 1. In support, Caddell states the following: This dispute involves the construction of a project for

the Veterans Administration in Memphis, Tennessee in 1996-97. Because the project was constructed almost ten (10) years ago, and because pre-construction VA design documents needed to be located and inspected, Caddell had difficulty quickly assembling the documents needed by its expert to compile his report and, as a result, its expert encountered unforeseeable delays in

rendering his report by the scheduled deadline of October 31, 2005.

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2.

In addition, because of Caddell's expert's schedule for

November 2005, Caddell's expert will be unable to complete his report until December 2, 2005. 3. Defendant has assisted Caddell in obtaining documents

needed by Caddell's expert to complete his report and, as a result, was aware of the possibility that Caddell's expert would be unable to meet the October 31, 2005 deadline and has agreed to the following extensions: (a) Plaintiff shall file its experts' reports by Friday,

December 2, 2005. (b) Defendant shall conclude depositions by Tuesday,

January 31, 2006 and may retain its own experts. (c) Discovery shall continue until January 31, 2006 and the

parties shall file a joint status report by Wednesday, February 15, 2006. 4. trial. Caddell is proceeding diligently to prepare its case for Therefore, Caddell requests that the Court favorably

consider this Unopposed Motion and enter an Order, extending the deadlines as agreed by the parties. WHEREFORE, plaintiff, Caddell Construction Co., Inc.,

requests that this Court grant its Unopposed Motion for Extension of Time. Respectfully Submitted, CADDELL CONSTRUCTION CO., INC. By Its Attorney
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Bohdan A. Futey)

NOTICE OF FILING OF EXPERT REPORT OF L. RAY VINSON In addition to the Expert Report of Marshall T. Ferrell, P.E. filed this day by plaintiff, plaintiff also gives notice that the claim of Steel Ser Cor prepared by L. Ray Vinson

constitutes the Expert Report of L. Ray Vinson which has been previously submitted to defendant and is to voluminous to file herein electronically. If defendant needs copies of Mr. Vinson's Expert Report, then copies will be provided immediately.

Respectfully Submitted, CADDELL CONSTRUCTION CO., INC. By Its Attorney MOCKBEE HALL & DRAKE, P.A. By: s/David W. Mockbee David W. Mockbee MOCKBEE HALL & DRAKE, P.A. Lamar Life Building, 10th Floor 317 E. Capitol Street Jackson, MS 39201 (601) 353-0035 - Telephone (601) 353-0045 - Facsimile

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Bohdan A. Futey)

JOINT STATUS REPORT Pursuant parties to this report Court's as order of October 21, 2005, has the been

jointly

follows.

Fact

discovery

completed.

The plaintiff's expert reports have been submitted to Defendant's counsel has completed depositions of experts. Defendant is in the process of

the defendant. the plaintiff's

retaining it own cost and schedule experts. The parties propose the following schedule for further

proceedings: 1. Defendant's experts will conclude their work and issue

reports by April 14, 2006. 2. Plaintiff shall have an opportunity to depose

defendant's experts until May 15, 2006. 3. Plaintiff shall file its Appendix A pretrial materials Plaintiff shall submit its trial exhibits to

by July 1, 2006.

defendant by the same date.

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4.

Defendant shall file its Appendix A pretrial materials Defendant shall submit its trial exhibits to

by August 1, 2006.

plaintiff by the same date. 5. The court will schedule a pretrial conference at its

convenience any time after August 1, 2006. 6. The at Court its will schedule any a time trial after in the Jackson, pretrial

Mississippi, conference.

convenience

Respectfully Submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Bryant G. Snee BRYANT G. SNEE Assistant Director s/Brian S. Smith BRIAN S. SMITH Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 616-0391 Fax: (202) 353-7988 Attorneys for Defendant s/David W. Mockbee David W. Mockbee MOCKBEE HALL & DRAKE, P.A. Lamar Life Building, 10 th Floor 317 E. Capitol Street Jackson, MS 39201 (601) 353-0035 - Telephone (601) 353-0045 - Facsimile Attorney for Plaintiff

Appendix to defendant's motion to compel Page 27 of 62
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In the United States Court of Federal Claims
No. 04-461C (Filed February 21, 2006) *********************** * CADDELL CONSTRUCTION CO., INC.* * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *********************** ORDER

Pursuant to the Joint Status Report filed on February 14, 2006, the following schedule for further proceedings is hereby ADOPTED: 1. Defendant's experts will conclude their work and issue reports by Friday, April 14, 2006. Plaintiff shall have an opportunity to depose defendant's experts until Monday, May 15, 2006. Plaintiff shall file its Appendix A pretrial materials by Monday, July 3, 2006. Plaintiff shall submit its trial exhibits to defendant by the same date. Defendant shall file its Appendix A pretrial materials by Thursday, August 3, 2006. Defendant shall submit its trial exhibits to plaintiff by the same date.

2.

3.

4.

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5.

A pretrial conference shall be held on Thursday, August 10, 2006 at 2:30 P.M. in Chambers at the U.S. Court of Federal Claims, 717 Madison Place, NW, Washington, D.C. The trial date and location shall be determined at that time.

IT IS SO ORDERED.

s/Bohdan A. Futey BOHDAN A. FUTEY Judge

-2-

Appendix to defendant's motion to compel Page 29 of 62

file:///C|/Documents%20and%20Settings/bsmith/Desktop/LH%20email%201.txt

Case 1:04-cv-00461-BAF
From: [email protected] Sent: Thursday, April 27, 2006 6:22 PM To: Smith, Brian (CIV) Subject: RE: caddell Attachments: tmp.htm

Document 42

Filed 05/19/2006

Page 48 of 80

Brian--I have no problem with the report except that I would like the opportunity to file a rebuttal expert report if needed on or before oct. 15. also the report doesn't mention our agreement that you would produce your experts in Jackson. I assume the report would not be an appropriate place for that but I would like it in writing. thanks

-----Original Message----From: [email protected] [mailto:[email protected]] Sent: Thursday, April 27, 2006 2:31 PM To: Lesa Hall Subject: RE: caddell

L,

Per our call, here's a proposed status report.

-- B

-----Original Message----From: [email protected] [mailto:[email protected]] Sent: Tuesday, April 25, 2006 8:50 AM To: Smith, Brian (CIV) Subject: caddell

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CADDELL CONSTRUCTION CO., INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. )

No. 04-461C (Judge Futey)

JOINT STATUS REPORT Based upon a modification to the anticipated completion of work by defendant's experts, and the Court's availability for a two-week trial in early 2007, the parties have conferred and propose the following pretrial schedule. 1. Defendant's experts will conclude their work and issue

reports by July 14, 2006. 2. Plaintiff shall have an opportunity to depose

defendant's experts until September 1, 2006. 3. Plaintiff shall have the opportunity to submit rebuttal

expert reports by October 15, 2006, after which the rebuttal experts will be deposed by defendant prior to December 1, 2006. 4. Plaintiff shall file its Appendix A pretrial materials Plaintiff shall submit its trial exhibits

by December 1, 2006.

to defendant by the same date. 5. Defendant shall file its Appendix A pretrial materials Defendant shall submit its trial exhibits

by January 15, 2007.

to defendant by the same date.

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6.

The Court will schedule a pretrial conference at its

convenience any time after January 15, 2007. 7. The Court will schedule a trial in Jackson, Mississippi,

during the first half of March 2007, with an estimated duration of two weeks. 8. The parties request that the Court accept the use of

electronic exhibits at trial. If the Court is unable to conduct the trial in the first half of March 2007, the parties may wish to propose a revised pretrial schedule based upon the actual trial date. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Bryant G. Snee BRYANT G. SNEE Assistant Director s/Brian S. Smith BRIAN S. SMITH Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 616-0391 Fax: (202) 353-7988 Attorneys for Defendant s/David W. Mockbee MOCKBEE HALL & DRAKE, P.A. Lamar Life Building, 10th Floor
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2

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From: [email protected] [mailto:[email protected]] Sent: Monday, May 01, 2006 2:58 PM To: Lesa Hall Subject: RE: Caddell status call In advance of a (only slightly) more formal request for documents for the experts, to be sent to you tomorrow, I'll indicate to you now that, rather than a lengthy list of specific documents (which you'd surely opt to provide access to docs in course of business rather than pull the specific docs for us (let me know if this assumption is wrong)) , we simply seek access to project and financial records from Caddell, SSC, EEE, AMW and WBE. Ideally the experts (primarily Mr. Cotton) would like to coordinate visits to each company in a series of (1-day?) stops to occur at the end of May or early June. If you concur with this concept, I'll send you the list tomorrow so you can pass it down the line, and we can start getting dates booked on the calendar. Thanks, -- Brian

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-----Original Message----From: [email protected] [mailto:[email protected]] Sent: Tuesday, May 02, 2006 12:17 PM To: Lesa Hall Subject: RE: Caddell: Informal discovery requestl Lesa, In order to further our experts' analysis, we request access to records maintained by the following entities at their places of business: Caddell, SSC, EEE, AMW, WBE. Ideally, our experts can inspect documents (similar to how they reviewed docs in Jackson), during a single, multi-stop, trip. We propose that to take place during the Memorial Day week (i.e. May 30-June 2, or during the week of June 12-16. Assuming no unforeseen problems, we will schedule one day for each visit. To define the scope of what we seek in more detail, I am attaching an internal working/draft list of specific document/types sought as an "including but not limited to" list. In more general terms, however, the experts need to see all documents that relate to each company's work on this project, their respective sub/contra