Free Order on Motion to Strike - District Court of Federal Claims - federal

Case 1:98-cv-00868-FMA

Document 114

Filed 06/06/2005

Page 1 of 2

In the United States Court of Federal Claims
No. 98-868C (Filed: June 6, 2005) __________ L.P. CONSULTING, INC., Plaintiff, v. THE UNITED STATES, Defendant. _________ ORDER __________ On April 25, 2005, plaintiff filed a motion to strike draft work orders produced by defendant, and on May 6, 2005, it amended that motion. Rule 37(c)(1) mandates the exclusion of documents that a party "without substantial justification fails to disclose" as required by RCFC 26(a),(e)(1),(e)(2), "unless such failure is harmless." As defendant admitted, these documents were responsive to plaintiff's 2000 request for production of documents, and yet were not produced until March 2005. Based upon its review of the record, the court finds that defendant has failed to show a "substantial justification" for its failure to produce these documents. These documents were in a file cabinet in Mr. Southern's office. Mr. Southern was the author of these documents and, indeed, they were the originals. While Mr. Southern was out of the office from October 2003 to October 2004, that does not explain why the documents were not produced in 2000 or at a later date. Indeed, while defendant claims that others were asked to search for the same documents, it cannot adequately explain how the documents could be overlooked by more than one individual. Production of these documents at this date would not be "harmless" ­ among other things, it would require plaintiff to depose again one or more individuals (among them Mr. Southern), prolonging a discovery process that has already taken too long and delaying the resolution of pending cross-motions for summary judgment. Accordingly, plaintiff's motion is hereby GRANTED ­ not only the draft work orders, but all references thereto in the briefs are hereby deemed stricken. On April 25, 2005, plaintiff also filed a motion to strike the declaration of John Buchholz, which was included in defendant's papers on pending cross-motions for summary judgment. In contrast to the scenario above, defendant has adequately explained that it attached this document in response to an argument made by plaintiff in its recent filings of which defendant did not previously have notice. In resolving the pending cross-motions, the court will determine whether

Case 1:98-cv-00868-FMA

Document 114

Filed 06/06/2005

Page 2 of 2

limited additional discovery regarding Mr. Buchholz is warranted. This motion is hereby DENIED. IT IS SO ORDERED.

s/Francis M. Allegra Francis M. Allegra Judge

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