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

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IN THE UNITED STATES COURT OF FEDERAL CLAMS PRECISION PINE & TIM]3ER, INC., Plaintiff, v. THE UNITED STATES, Defendant. )

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No. 98-720C (Chief Judge Damich)

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) DEFENDANT'S FIRST SET OF INTERROGATORIES AND REOUESTS FOR PRODUCTION OF DOCUMENTS REGARDING DAJvlAGES Pursuant to the Rules of the United States Court of Federal Claims ("RCFC"), the defendant, the United States, requests that plaintiffrespond fully to each of the f~lowing interrogatories and requestsfor production of documents within 30 days. Theseinterrogatories and requests for production of documents (collectively, "discovery requests") shall be deemed continuing to the full extent contemplatedby the RCFC, as to so require supplementationif you obtain responsive information, discover responsive documents,or add newclaims after your original responses. Supplementalresponses should be provided within the time provided by the RCFC. In responding to these discovery requests, you should be guided by the following instructions and definitions.

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INSTRUCTIONS Responsesto these discovery requests must include information and documents, wherever located, that are possessed controlledby the plaintiff, its affiliates, joint ventures,directors, or officers, partners, employees, agents, subcontractorswithout limitation, attorneys, investigators, successors, assignees, and any and all other persons whoare acting or whohave acted for or upon behalf of either plaintiff. If youCanprovide only part of the informationsought by a discovery request, provide all the information you can and state whyyou cannot provide the remainder. Responses incorporate by reference other responses that supply or identify the same may information or documents. If you object to any portion of a discoveryrequest, provide all information or documents sought by that portion of the request to whichyou do not object. Whenever interrogatory calls an for the identity of a document oral communication you assert is privileged, state the or that identity of such document other communication, fact of such claim of privilege, and the or the basis for the claim. If any document referred to in these discoveryrequests no longer exists or is otherwise destroyedor disposedof, identify each document; state the date of, the circumstanc._es,and reason for such destruction or disposal; identify the personsresponsiblefor the_destructionor disposal; and provide all information whichwouldhelp us to obtain that document a copy of it. If any or responsive document destroyed or disposed of, describe plaintiff's procedures and policies was concerning document destruction/retention in effect since its receipt of the solicitation for the contract.

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Exceptas otherwise specified, defendant's discovery requests relate to the period between June 1991 and July 2000, inclusive. DEFINITIONS For the purposesof these discoveryrequests, the following definitions apply: 1. "Document" defined in the broadest terms currently recognized pursuant to the is

RCFC the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. The term and shall include, without limitation, any written or other compilationof information, whether printed, handwritten, recorded, encoded, produced, reproduced, or reproducible by any other process, drafts, revisions, or final versions, original or preliminarynotes, and documents summarizing other docume~)ts, inter-company, inter-agency, intra-companyor intra-agency communications any type, computertapes, and computerfiles, and all of their contents. of "Document" includes, but is not limited to: correspondence, memoranda, contractual documents, specifications, drawings, affidavits, agreements,analysis, appointmentbooks, appointment calendars, bank checks, bills, blueprints, bookkeeping entries, calculations, canceledchecks, cashiers checks, charts, checks, check stubs, communications, computerprintouts, contracts, correspondence,court filings, day books, declarations, depositions, desk calendars, diagrams, diaries, drafts, drawings,expensereports, files, forecasts, graphs, invoices, interview notes, ledgers, letters, lists, log books, mailgrams,memoranda, minutes, notebooks, note pads, notes, papers, photographs,plans, projections, proposals, receipts, records, reports, sketches, sound recordings, statements, studies, summaries, surveys, tape recordings, telefax, telegrams, telephonelogs, time records, time sheets, transcripts, travel vouchers, vouchers, workingpapers, worksheets, and all other papers, writings, drawings, recordings, or physical things containing iii

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information, including all original and amended ~,ersions of the documents,preliminary and subsequent drains or marginal notes appearing upon any documents, howeverdenominatedor described by the party to whom interrogatory and/or request for production of documents the is directed. "Document" shall further collectively include the oriNnal, duplicate original and any or all copies or reproductionsof the oriNnal document, the extent that any or all copies are to different in any wayfi'om the original document, whetherby interlineation, receipt stamps, notation, indication of copies sent or received or otherwise, whichare within your possession, custodyor control. 2. The "Government" refers to the United States of Americaand all agencies,

departments~ subsidiary, units thereof, including without limitation the Department and of Agriculture ("Agriculture"). 3. "You," "your," and "Precision Pine" refer to plaintiff Precision Pine & Timber,

Inc., any entity owned,in wholeor in part, or controlled by Precision Pine, and all present and past owners,employees, contractors, subcontractors, agents, consultants, investigators, directors, officers, experts, and representatives, including counseland all other personsor entities acting or purporting to act uponPrecision Pine's behalf. 4. "Person" meansany natural person, corporation, partnership, other b_usiness

association, or entity recognizedby law, and the employees independentcontractors thereof, or and any domestic or foreign governmentbody, commission,board, agency, branch, department, component,or element thereof. 5. "And" "or" are to be construed conjunctively or disjunctively in order to and

afford the defendant'sdiscoveryrequest its broadest scope.

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6. 7.

"Each" means each and every. "Relating to" meanscontaining, constituting, discussing, describing, identifying,

referring to, supporting, explaining, contradicting, or in any waypertaining to the subject specified. 8. The "complaint" meansthe operative complaint filed in case No. 98-720C the in

United States Court of Federal Claims. 9. "Identify" and "identity," with respect to a document, means state: to (a) the nameof the person whoprepared it;

(b) the nameof the person whosigned it or over whosenameit was issued; (c) (d) the ngmeof each person to whom was addressed or distributed; it its nature and substancewith sufficient particularity to enable it to identified; (e) (f) (g) (h) its date and the date it wasprepared; each of its identifying numbers,titles, and designations; its physical location and the identity of its custodian or custodians; and whetherit has been or will be, without the necessity of a focal motionforproduction, madeavailable to defendant for inspection and copying, and if it will not be madeavailable, whynot. 10. "Identify" and "identity," with respect to any course of action or conductreferred

to, means identify eachact, event, transaction, occasion, incident, or matterthat is part of the to course of action or conduct, including: (a) the date, time, and place that it occurred;

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(b)

the identity of each personparticipating and a statementof capacity, title, or job description of such person;

(c) (d)

a statement of the subject matter; and a statement whether any notes, minutes, or other memoranda were made and, if so, a statement identifying the notes, minutes or other memoranda.

ll. her:

"Identify" and "identity," with respect to a natural person, means state his or to

(a)

full name; present residence address and telephone number;if unknown, state the last knownresidence address and telephone number, and the last known date the person resided there;

(c)

present employer,business address, telephone number,and job title; if unknown, state the last known business address and telephone number, and the last known date the person was employed there;

(d)

employer,address, telephonenumber,and job title at the time of the event, transaction, or occurrenceto whichthe interrogatory relates.,

12. state the:

"Identify" and "identity," with respect to other than a natural person, means _ to

(a) (b) (c)

full name; pregent or last known address; date of incorporation;

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(d)

place(s) of businessat the present time and at all times relevant to interrogatory involved;

(e)

type(s) of business(es) in whichit is engagedat present and wasengaged at all times relevant to the interrogatory involved;

(0

nature or customary business description (e.g., corporation, trust, etc.);

(g) person or persons whoacted upon behalf of such entity with respect to the subject matter of the interrogatory; and (h) any ownershipinterest of Precision Pine & Timber,Inc. in such entity.

13. Aninterrogatory asking you to "explain in detail," "describe in detail," "state each fact," or to "state all facts" seeks disclosure of each and every fact, circumstance,condition, and thing you know about the subject of that interrogatory and full identification and description of the source(s) of such facts, circumstances,conditions, and things, including, but not limited to, identification of each person having knowledge and each documentcontaining information of, relating to, such fact, circumstance,condition, or thing. 14. Thephrase "mills at issue" refers to the Precision Pine's Eagar, Heberand Winslow sawmills, Precision Pine's Winslow planer, Precision Pine's pellet mill, and any other facility with respect to whichPrecision Pine seeks_to recover damages this action. in 15. Thephrase "contracts at issue" refers to the contracts identified in paragraph 4 of the amended complaintin this action, i.e., the O.D.Ridge(contract no. 001574),Kettle (contract no. 001830), Hay(contract no. 001152), Brookbank (contract no. 001822), Jersey (contract no. 001756),Salt (contract no. 005937),Manaco (contract no. 004625), St. (contract no. 001582), Hutch-Boondock (contract no. 005465), Mud (contract no. 005556), vii

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Saginaw-Kennedy (contract no. 006585), Brann (contract no. 006577), U-Bar(contract 005051)and Monument (contract no. 005564)timber sale contracts. 16. Thephrase "Silver v. 17~omas litigation" refers to case no. 94-1610in the United

States District Court for the District of Arizona. 17. Thephrase "suspension of the contracts at issue" refers to the suspension of the contracts at issue by the Forest Service on August 1995as a result of the Silver v. 17minas 25, litigation.

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INTERROGATORYNO. 6. Describein detail eacti contract, agreementor other arrangement whichPrecision Pine by purchasedor wasentitled t6;procure timber, f~omwhateversource, public or private, between June 24, 1991and August1, 21300,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 volume timber available for purchase; the species of timber available for purchase(e.g., of 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:

6

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INTERROGATORYNO. 7. If any contract, agreementor other arrangement identified 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 at the time of the transaction, and the identity of all personswhonegotiated, approved were or otherwiseinvolved with the transaction on behalf of Precision Pine or otherwise. ANSWER:

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INTERROGATORYNO. 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 washarvested, the total volume timber or other material harvested, the species and size class of timber or of other material harvested, the volumeof each species and size class of timber or other material harvested, and the mill or other facility to whichthe harvested timber or other material was shipped for processing. ANS~,VER:

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INTERROGATORYNO. 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 to, the monthsin wkichPrecision Pine anticipated to harvest and, for each monthin which harvesting wasanticipated, the species and size class of timber or other material that Precision Pine expectedto harvest, the volume each species and size class of timber or other material of that Precision Pine expectedto harvest, and the mill at whichPrecision Pine expectedto process the timber or other material that it harvested. ANSWER:

9

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INTERROGATORY NO. For each contract, ageementor other arrangementidentified in response to interrogatory no. 6, identify each contractor, subcontractor, subsidiary or other person that performedor was engagedto performany logNngor timber harvesting workon behalf of Precision Pine. ANSWER:

15

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INTERROGATORYNO. 16. For each contractor, subcontractor, subsidiary or other person identified in responseto interrogatory no. 15, describe in detail all workperformed behalf of Precision Pine, including, on but not limited to, the contract, ageementor other arrangementupon which workwas performed, the periods during which workwas performed on each contract, and for each month in which ~vork was performed, the nature of the workand the amountowedby Precision Pine for such work.

ANSWER:

16

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INTERROGATORYNO. 17. For each contractor, subcontractor, subsidiary or other personidentified in responseto 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 monthbetweenAu~mast 1993 and December 1998. ANSWER:

17

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INTERROGATORYNO. 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 1991 and July 2000. ANSWER:

18

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INTERROGATORYNO. 19. For each of the mills at issue, identify the volume each product for whichPrecision of Pine seeks the recovery of lost profits that was producedduring each monthbetweenJune 1991 and July 2000. ANSWER.:

19

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INTERROGATORYNO. 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:

2O

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

23

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INTERROGATORYNO. 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 whichworkwasperformed, and for each contract serviced in a Nven month,the distance that timber or other material from the contract was hauled, the volume of timber or other material hauled, and the sumpaid by Precision Pine. ANSWER~:

24

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INTERROGATORYNO. 26. For each of the mills at issue, describe in detail all plant costs and expenses,including, but not limited to, operating costs, rental expenses,labor costs, fuel costs, and repair costs, for each monthbetween June 1991 and July 2000. ANSWER:

26

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INTERROGATORYNO. 27. For each productfor whichPrecision Pine seeks the recoveryof lost profits (i.e., "lost market opportunity" damages),identify the price at whichPrecision Pine contendsthat it could have sold the product in each monthbetween August 1993 and December 1998. ANSWER:

27

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INTERROGATORYNO. 28. Describe in detail the methodology used and any sources of information or market data used, relied uponor consulted in determiningthe prices providedin your response to interrogatory no. 27. ANSWER:

28

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INTERROGATORYNO. 30. Describein detail all sales of by-products(i.e., chips, ~ndings,shavings, or bark) by Precision Pine be~veenAugust1993 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 fi'om whichthe product sold wasproduced,and the amount any of costs incurred by Precision Pine in connectionwith the sale (e.g., transportation costs). ANSWER:

3O

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INTERROGATORYNO. 34. Withrespect to each of the contracts at issue, explain in detail whydid Precision Pine did not harvest timber that it anticipated harvesting during the suspension issue (see, e.g., the at "harvest dates" in page C-0064to -0066 of Precision Pine's February26, ~2003damages calculations), after suspension the contract waslifted. of ANSWER:

34

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DOCUMENTREQUEST NO. 4: Produceall audited and unaudited financial statements (e.g., balance sheets, income statements, cash flow statements) for Precision Pine, with all accompanying notes, schedules, data and supporting documents,whethermonthly, quarterly, annual, or otherwise, for the fiscai year ending March3 l, 1992though the fiscal year ending March31, 2000. RESPONSE:

DOCUMENTREQUEST NO. 5: For the fiscal year egding March31, 1992, though the fiscal year ending March31, 2000, producethe statement of incomefor Precision Pine in the form provided by documentVIII-I to VK!-8of Precision Pine's February 26, 2003 damagesbinders. RESPONSE:

DOCUMENTREQUEST NO. 6: To the extent that contracts, agreementsor other arrangements identified in response interrogatory no. 6 are not betweenPrecision Pine and the United States Forest Service, produce all such contracts, agreementsor arrangements, including any amendments modifications or thereto, and all other documents relating to such contracts, agreements other arrangements. or RESPONSE:

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DOCUMENT REQUEST NO. 9: Produceall contracts, invoices, receipts, cost, accountingor management reports, or other documents relating to the cost of hauling timber, lumber, or other material or products, by or on behalf of Precision Pine, between August 1993 and December 1998, whether in connection with timber harvesting, transportation betweenthe mills at issue, in connectionwith the sale of products, or otherwise. RESPONSE:

DOCUMENT REOUEST.NO. 10: Produceall contracts, invoices, cost, accountingor management reports, or other documents that relate to Precision Pine's loggingcosts, hauling costs, transportation costs, slash costs, and rock replacementcosts, as those terms ~e used in Precision Pine's February26, 2003 damagescalculations. RESPONSE:

DOCUMENT REQUEST NO. 11 : Produce all documentsthat showvolumeof each product producedby the mills at issue between August 1993 and December1998. RESPONSE:

49

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DOCUMENT REQUEST NO. 12: Produceall contracts, invoices, receipts, cost, accountingor management reports, or other documents relating to sales of timber, lumber, roundwood, by-products(i.e., chips, grindings, shavings, and bark) or other material betweenAug~ast1993 and December 1998. RESPONSE:

DOCUMENT REQUEST NO. 13: Produceall contracts, invoices or other documents relating to sales of any products between August1993 and December 1998 for which Precision Pine seeks the recovery of lost profits in this action. RESPONSE:

DOCUMENT REQUEST NO. 14: ProducePrecision Pine's "cost comparisonreports" - the report producedwith Precision Pine's February 26, 2003 damagescalc61ation as documentno. Vt.(a)-4 - for each monthfzom June 1991 to July2000. RESPONSE:

5O

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DOCUMENT REQUEST NO, 15: Produceall "goal" reports - the report producedwith Precision Pine's February26, 2003 damages calculation as document VI(a)-23 - for each monthfl'om .hme991 toJuly 2000. no. RESPONSE:

DOCUMENT REQUEST NO. 16: Produceall documents relating to Precision Pine's plan and schedule for harvesting the contracts, agreementsand other arrangements identified in response to interrogatory no. 6. RESPONSE:

DOCUMENT REOUEST NO. 17: Produceall invoices, receipts, cost, accountingor management reports, or other documents that showcosts for labor, fuel, repairs or other costs for the mills at issue between August I993 and December1998. RESPONSE:

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ROBERTD. McCALLUM, JR. Assistant Attorney General DAVE) M. COHEN Director

KAT~~A ~ BLEECKER Assistant Director

OF COUNSEL: Patricia Disert Lori Polin Jones Office of the General Counsel U.S. Department of A~cu~ture

DAVIDA. HAR_R.tNGTON Trial Attorney CommercialLitigation Branch Civil Division U.S. Departmentof Justice Attn: Classification Unit 8th Floor 1 I00 L Street, N.W. Washington, D.C. 20530 Attorneys for Defendant

June 20, 2003

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CERTIFICATE OF SERVICE t hereby certify under penalty of perjury that on this S~'dayof June 2003, I causedto served by hand delivery a copy of Defendant'sFirst Set of I.nterrogatories and Requestsfor Production of Documents Regarding Damages,addressed as follows:

Alan I. Saltman Saltman & Stevens 1801 K Street, N.W., Suite 110 Washington, D.C. 20006