Free Motion for Reconsideration - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PRECISIONPINE & TIMBER, INC., Plaintiff, v. THE UNITED STATES, Defendant. No. 98-720C (Chief Judge Damich)

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS REGARDING DAMAGES Introduction In answering defendant's discovery requests regarding damages,which are extremely broad both as to time frameand informationsought, it became apparent to plaintiff that virtually all records of Precision Pine betweenJune 24, 1991 and August1, 2000 might be deemedto be responsive. For example, defendant's definition of "document"can be read to include essentially all informationproducedor received by Precision Pine over this nearly 10-year period. Additionally, given the broad and overlapping nature of defendant's requests for production of documents, defendant wouldseemingly have Precision Pine copy, organize and producevirtually all of the corporate files of Precision Pine several times over.

Assuming that defendant does not truly want or need to inspect every piece of paper in Precision Pine's files (and knowing that no such discovery request would, in any event, be appropriate under the rules of the Court of Federal Claims), Precision Pine has utilized its best efforts to review, segregate and producethose responsive, non-privileged materials whichmost 1

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INTERROGATORY NO. 5. For each personidentified in responseto interrogatory no. 4, describe in detail the nature of the person's knowledge with respect to the interrogatory, request for production or request for admission.

ANSWER: Objection. The "detailed nature" of the responses provided by these persons in the preparation of defendant's discovery requests is subject to the attorney-client and attorney-work product privileges. Withoutwaivingthese objections, Precision Pine states that the individuals identified in response to Interrogatory No. 4 have knowledge within their anticipated areas of testimony as identified in response to Interrogatory No. 2 and were consulted with respect to information within their specific areas of knowledge.

INTERROGATORY NO. 6. Describe in detail each contract, agreementor other arrangementby which Precision Pine purchasedor was entitled to procure limber, from whateversource, public or private, between June 24, 1991and AugustI, 2000, including but not limited to: the date that the contract, agreementor other arrangementwasentered into or acquired by Precision Pine; the date that the contract, agreementor other arrangementterminated or wastransferred, assigned or sold by Precision Pine; any namecommonly used to identify the contract, agreementor arrangement (e.g., O.D.Ridge);the identity of the seller of the timber; the location of the timber; the total volumeof timber available for purchase; the species of timber available for purchase(e.g.,

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PonderosaPine); the volumeof each species and size class of timber available for purchase; and the price to be paid for each species and size class of timber available for purchase.

ANSWER: Objection. Uponreview of the materials related to the numerous contracts by which Precision Pine secured timber for its operations from June 24, 1991to August1, 2000, it became clear that the sought after information is both overly broad and unduly burdensome. Moreover, the great majority of the responsive informationrelates to Forest Service timber sale contracts and is, therefore, ascertainable from documents whichare already in the possession of defendant. Withoutwaivingthese objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsiveto this interrogatory is containedin its timber sale contract files, which Precision Pine will make available for inspection. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for inspection and will be produced a at mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens, P.C. The remaining contract files are contained in 11 numbered boxes labeled: "TimberSale Contracts." Thesecontract files are currently available for inspection and will be producedat a mutually agreed upon time at the former corporate headquarters of Precision Pine in Heber, AZ.

INTERROGATORYNO. 7. If any contract, agreementor other arrangementidentified in response to interrogatory no. 6 wassold, assigned or otherwisetransferred by Precision Pine, describe the transaction in detail, including, but not limited to, the transaction's date, the identity of the purchaser,assignee or transferee, the sale price, the amount timber or other material that remainedto be harvested of 8

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at the time of the transaction, and the identity of all persons whonegotiated, approvedor were otherwise involved with the transaction on behalf of Precision Pine or otherwise.

ANSWER: Objection. Uponreview of the materials related to the numerouscontracts by which Precision Pine secured timber from June 24, 1991to August1, 2000, it became clear that the sought after information is both overly broad and unduly burdensome.Moreover,the great majority of the responsive informationrelates to Forest Service timber sale contracts and is therefore ascertainable from documents whichare already in the possession of defendant, indeed, all sales, transfers and assignments Forest Service timber sales are subject to the written of approval of the Forest Service. Without waiving these objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsive to this interrogatory is containedin its timber sale contract files, whichPrecision Pine will makeavailable for inspection. Suchfiles which relate to the contracts that are the subject of this litigation are currently available for inspection and will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens. The remaining contract files are contained in 11 numbered boxes labeled: "Timber Sale Contracts". Thesecontract files are currently available for inspection and will be produced at the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Individuals with authority to negotiate a transfer of contract obligations on behalf of Precision Pine during the specified time period were its President, Lorin Porter and until March, 2000 its Vice President, Lewis Teuney. 9

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INTERROGATORY NO. 8. Withrespect to each contract, agreementor other arrangementidentified in response to interrogatory no. 6, describe in detail the actual harvest of timber or other material obtained by Precision Pine, including, for each monthin whichany timber or other material was harvested, the total volume timber or other material harvested, the species and size class of timber or of other material harvested, the volume each species and size class of timber or other material of harvested, and the mill or other facility to whichthe harvested timber or other material was shipped for processing.

ANSWER: Objection. Uponreview of the materials related to the numerous contracts by which Precision Pine secured timber from June 24, 1991to August1, 2000, it became clear that the sought after information is both overly broad and unduly burdensome.Moreover,the great majority of the responsive informationrelates to Forest Service timber sale contracts and is therefore ascertainable from documents whichare already in the possession of defendant. Withoutwaivingthese objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsiveto this interrogatory is containedin its timber sale contract files, which Precision Pine will make available for inspection. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for reviewand will be produced a at mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens. The remainingcontract files are contained in 11 numbered boxes labeled: "TimberSale Contracts". Thesefiles are currently available for review and will be producedat the formercorporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time. 10

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Informationresponsive to tb_is interrogatory with respect to Forest Service timber sale contracts is also contained in the TimberSale Statement of Account("TSSA")for each Forest Service sale and therefore is already in the possession of defendant. Precision Pine has also retained manysuch TSSAs manyof its Forest Service timber sale contacts. TSSAs the for for contracts that are the subject of this litigation are currently available for reviewand will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

Harvest records, including Forest Service TSSAs the remainingcontract files are for contained in the individual contract files contained 11 numbered boxes labeled: "TimberSale Contracts." Additionally, TSSAs completedForest Service contacts are contained in two for boxes labeled "TimberSale Contracts, TSSAs." These files are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Responsiveinformation identifying the logging entity and the workperformedon behalf of Precision Pine is also contained in 7 numbered boxes labeled '°Logging and Hauling Records." Thesefiles are currently available for reviewand will be producedat the formercorporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

INTERROGATORY NO. 9. Withrespect to each contract, agreementor arrangementidentified in response to interrogatory no. 6, describe in detail Precision Pine's plan for operating each mill at issue and harvesting remainingtimber and other material as of August24, 1995, including, but not limited 11

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Informationresponsive to this interrogatory with respect to Forest Service timber sale contracts is also contained in the TSSA each Forest Service sale and therefore is already in for the possession of defendant. Precision Pine has retained such TSSAs manyof its Forest for Service timber sale contacts. Pursuant to RCFC 33(d), TSSAs the contracts that are the for subject of this litigation are currently available for reviewand will be produced a mutually at agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

INTERROGATORY NO. 15, For each contract, agreementor other arrangementidentified in response to interrogatory no. 6, identify each contractor, subcontractor, subsidiary or other person that performedor was engagedto perform any logging or timber harvesting workon behalf of Precision Pine.

ANSWER: Objection. Uponreview of the materials related to the numerouscontracts by which Precision Pine secured timber from June 24, 1991to August1, 2000identified in response to Interrogatory No. 6, it became clear that the sought after informationis both overly broad and unduly burdensome.Without waiving these objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsiveto this interrogatory is containedin its timber sale contract files, whichPrecision Pine will makeavailable for inspection. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for reviewand will be producedat a mutually agreed upon time at the Washington,D.C. offices of salmaan & Stevens. The remaining contract files are contained in 11 numbered boxes labeled: "Timber Sale Contracts." Thesefiles are currently available for review and will be producedat the former 18

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corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Responsiveinformation identifying the logging entity that performedworkon behalf of Precision Pine is also contained in 7 numbered boxes labeled "Loggingand Hauling Records." Thesefiles are currently available for reviewand will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

INTERROGATORY NO. 16. For each contractor, subcontractor, subsidiary or other person identified in responseto interrogatory no. 15, describe in detail all workperformedon behalf of Precision Pine, including, but not liniited to, the contract, agreementor other arrangementuponwinch workwas performed, the periods during winch workwas performed on each contract, and for each month in which work was performed, the nature of the work and the amountowedby Precision Pine for such work.

ANSWER: Objection. Uponreview of the materials related to the numerouscontracts by which Precision Pine secured timber from June 24, 1991 to August1, 2000 identified in response to interrogatory no. 6 (whichserves as the predicate for interrogatory no. 15, whichserves as the predicate for this interrogatory), it became clear that the sought after informationis both overly broad and unduly burdensome.Without waiving these objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsive to this interrogatory is containedin its timber sale contract files, whichPrecision Pine will makeavailable for inspection. Suchfiles which 19

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relate to the contracts that are the subject of this litigation are currently available for reviewand will be producedat a mutually agreed upontime at the Washington,D.C. offices of Saltman & Stevens. The remaining contract files are contained in 11 numbered boxes labeled: "Timber Sale Contracts." Thesefiles are currently available for reviewand will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Responsiveinformation identifying the logging entity that performedworkon behalf of Precision Pine is also contained in seven numbered boxes labeled "Loggingand Hauling Records." Thesefiles are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

INTERROGATORYNO. 17. For each contractor, subcontractor, subsidiary or other person identified in response to interrogatory no. 15, describe in detail their capacity to harvest timber on behalf of Precision Pine, including, but not limited to, a description of all equipment personnelassigned or and dedicated to harvest the contracts at issue in each monthbetweenAugust1993 and December 1998.

ANSWER: Objection. Withrespect to that portion of interrogatory no. 17 that seeks information about the capacity of logging subcontractors, Precision Pine objects on the groundsthat the request is both overly broad and unduly burdensome.Moreover, detailed documentary information about the timber harvesting capacity of Precision Pine's logging subcontractors, 20

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other than Precision Pine's ownlogging arm, Precision Forest Management, Inc. ("PFMI"), somecases from morethan 13 years ago is not in Precision Pine's possession. Pursuant to RCFC 33(d), Precision Pine states that responsive information about PFMI located in the Box is 1 of the Loggingand HaulingRecords and that such information as is available regarding logging subcontractors is contained in the other six boxes of Loggingand HaulingRecords, all of whichare currently available for reviewat the formercorporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Pursuant to RCFC 33(d), Precision Pine states that, with respect to the workperformed by specific loggers on the contracts whichare the subject of this litigation, responsive informationis containedin the timber sale contract files whichare currently available for review and will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

INTERROGATORY NO. 18. For each of the mills at issue, state the total volume timber or other material fromeach of source that was processed by the facility during each monthbetweenJune 1991and July 2000.

.ANSWER:

Pursuant to RCFC 33(d), Precision Pine states that responsive material is contained in the mill production records, whichare currently available for review and will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens. 21

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Additional responsive information about the "total volumeof timber or other material fi:om each source" is containedin the timber contract files. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for reviewand will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens. The remaining contract files are contained in 11 numbered boxes labeled: "Timber Sale Contracts." Thesefiles are currently available for reviewand will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

Pursuant to RCFC 33(d), information responsive to this interrogatory with respect Forest Service timber sale contracts is also contained in the TSSA each Forest Service sale for and therefore is already in the possession of defendant. Precision Pine has retained such TSSAs for many its Forest Service timber sale contacts. TSSAs the contracts that are the subject of for of this litigation are currently available for reviewand will be produced a mutuallyagreed at upon time at the Washington,D.C. offices of Saltman & Stevens. Additionally, TSSAs for completedForest Service contacts are contained in two boxes labeled TimberSale Contracts, TSSAs. Thesefiles are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

INTERROGATORY NO. 19. For each of the mills at issue, identify the volumeof each product for whichPrecision Pine seeks the recovery of lost profits that was producedduring each monthbetweenJune 1991 and July 2000. 22

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ANSWER: Objection. Uponreview of the materials related to the monthlyproduction of the 13 lumberproducts at three mills from June 24, 1991 to August1, 2000, it became clear that the sought after information is both overly broad and unduly burdensome.Without waiving these objections, pursuant to RCFC 33(d), Precision Pine states that information responsive to this interrogatory is containedin its mill productionfiles, whichPrecision Pine will make available for inspection. Suchfiles are currently available for review and will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

INTERROGATORY NO. 20. For each sawmill that Precision Pine bought, sold, openedor closed betweenJune 1991 and July 2000, identify that date on whichthe mill wasbought, sold, openedor closed.

ANSWER: Pursuant to RCFC 33(d), Precision Pine states that information responsive to this interrogatory is containedin its mill purchaserecords and mill production records, which Precision Pine will makeavailable for inspection. Suchfiles are currently available for review and will be producedat a mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

INTERROGATORY NO. 21. Describein detail each purchaseand each sale identified in response to interrogatory no. 23

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INTERROGATORYNO. 23. For each contract, agreementor other arrangementidentified in response to interrogatory no. 6, identify each contractor, subcontractor, subsidiary or other person that hauled timber or other material on behalf of Precision Pine.

ANSWER: Objection. Uponreview of the materials related to the numerouscontracts by which Precision Pine secured timber from June 24, 1991to August1, 2000identified in response to interrogatory no. 6, it became clear that the sought after informationis both overly broad and unduly burdensome.Without waiving these objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsiveto this interrogatory is containedin its timber sale contract files. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for review and will be producedat a mutually agreed upontime at the Washington, D.C. offices of Saltman & Stevens.

The remaining contract files are contained in 11 numbered boxes labeled: "Timber Sale Contracts." Additionally, responsive information identifying the hauling entity which performed workon behalf of Precision Pine is also contained in seven boxes labeled "Loggingand Hauling Records." Thesefiles are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

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INTERROGATORY NO. 24. For each contractor, subcontractor, subsidiary or other person identified in responseto interrogatory no. 23, describe in detail the services providedto Precision Pine, including, but not limited to, the monthsin which workwas performed, and for each contract serviced in a given month,the distance that timber or other material from the contract was hauled, the volumeof timber or other material hauled, and the sumpaid by Precision Pine.

ANSWER: Objection. Uponreview of the materials related to the numerouscontracts by which Precision Pine secured timber from June 24, 1991 to August1, 2000 identified in response to interrogatory no. 6 (whichserves as the predicate for interrogatory no. 24, whichserves as the predicate for this interrogatory), it became clear that the sought after informationis both overly broad and unduly burdensome.Moreover, the great majority of the responsive information relates to Forest Service timber sale contracts and, therefore, informationabout the monthsin which workwas performed, the volumeof timber removed, and haul distances to Precision Pine's mills, are ascertainable from documents whichare already in the possession of defendant. Without waivingthese objections, pursuant to RCFC 33(d), Precision Pine states that informationresponsive to this interrogatory is containedin its timber sale contract files, which Precision Pine will makeavailable for inspection. Suchfiles whichrelate to the contracts that are the subject of this litigation are currently available for reviewand will be produced a at mutually agreed upon time at the Washington,D.C. offices of Saltman & Stevens.

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ANSWER: Pursuant to RCFC 33(d), Precision Pine states that information responsive to this interrogatory is containedin its timber sale contract files, whichare currently available for review and will be producedat a mutually agreed upontime at the Washington,D.C. offices of Saltman & Stevens.

INTERROGATORY NO. 30. Describe in detail all sales of by-products ~ chips, gfindings, shavings, or bark) by Precision Pine betweenAugust1993 and December 1998, including, but not limited to, the date of the sale, the identity of the purchaser, the type of material sold, the volume material sold, of the price of the sale, the mill from whichthe product sold was produced,and the amountof any costs incurred by Precision Pine in connection with the sale ~ transportation costs).

ANSWER: Objection. Uponreview of the materials related to the numeroussales of by-products by Precision Pine betweenAugust1993 and December 1998, it becameclear that the sought after information is both overly broad and unduly burdensome.Without waiving these objections, Precision Pine states that informationresponsiveto this interrogatory for the period of the suspension with respect to chips, shavings and bark has already been producedto defendant in the damages binder volume at III(a)l-29, III(c)1-30, III(d)l-22, respectively. II

Pursuant to RCFC 33(d), Precision Pine states that information with respect to the sales of by-products is currently available for review and will be producedat a mutually agreed upon 30

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time at the Washington,D.C. offices of Saltman & Stevens.

Pursuant to RCFC 33(d), Precision Pine further states that information responsive to this interrogatory is contained in 10 numbered boxes labeled "Financial Records," which are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time. Additionally, invoices for sales of by-products from the requested time period are currently available for review and will be producedat the former corporate headquarters of Precision Pine in Heber, AZat a mutually agreeable time.

INTERROGATORY NO. 31. Describein detail each and every action taken by Precision Pine in order to mitigate the damages allegedly caused by the suspensionof the contracts at issue.

ANSWER: Precision Pine mitigated its damages throughout the suspension by consolidating its operations whenever possible, laying-off employeesand reducing officers' salaries. In this regard, see the response to interrogatory no. 36 below. Additionally, Precision Pine sought out and pursuedall leads for obtaining raw material that it could profitably process including: cutting Precision Pine's ownfee timber (muchearlier than it wantedto do so), assessing Arizona State timber sale offerings, contacting Indian tribes, including the Fort Apache Indian Tribe, Zuni Tribe and HualapaiTribe, about the availability of timber from tribal lands, and contacting all area private landholders that Precision Pine believed might haveprivate timber/logs for sale. 31

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is contained in the binders of documentssupporting the damage calculations, whichhave already been producedto the government.Additional responsive documentsare available for inspection at the Washington,D.C. law offices of Saltman & Stevens and the former corporate headquarters of Precision Pine in Heber, AZ.

DOCUMENTREQUEST NO. 27: Produceall documents other evidence that Precision Pine will use or rely uponto or supportits claimfor damages trial in this action. at

RESPONSE: Nofinal decision has been madeas to what evidence to offer at trial. The documents already providedto defendant as well as those documents identified in response to the foregoing interrogatories and requests for production are likely sources of documentary evidenceto be offered at trial. See response to Document Request No. 26.

SALTMAN STEVENS, P.C. & 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Counselfor Plaintiff

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OF COUNSEL: Richard W. Goeken David J. craig SALTMAN STEVENS, P.C. & 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Date: August 25, 2003

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