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

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-168C (Judge Allegra)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL Defendant, the United States, opposes the motion of plaintiff, North Star Alaska Housing Corp., to compel production of electronic documents responsive to its December 24, 2004 Requests for Production Nos. 1, 2, and 3. Compel at 1, Exhibit 1. Plaintiff's Motion To

On January 24, 2005, we objected to

Requests Nos. 1 and 2 as overbroad, and to Request No. 3 as vague and, depending upon its meaning, overbroad. ("Def. App.") 2-4, 8. Indeed, Requests for Production Nos. 1, 2 and 3 are overbroad; they generically request "any and all documents in any way referring to or relating to" the lease that is the subject of this case, Birchwood Homes, and the allegations set forth in Cases 02-1632C and 03-2699C. Pursuant to Rule 34(b) of the Rules Defendant's Appendix

of the United States Court of Federal Claims, however, requests for production of documents must describe each item requested "with reasonable particularity." To comply with the "reasonable

particularity" requirement, a request must identify the types of documents sought. See Amcast Indus. Corp. v. Detrex Corp.,

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 2 of 6

138 F.R.D. 115, 121 (N.D. Ind. 1991).

Because Requests Nos. 1,

2, and 3 do not identify any type of document, they do not comply with that requirement, and are overbroad. Cf. Borden, Inc.

v. Florida E. Coast Ry. Co., 772 F.2d 750, 756-57 (11th Cir. 1985) (holding that requests for production designed to, in requestor's words, "obtain every document which could conceivably be relevant to the issues in this case" were overly broad); Lectrolarm Custom Systs., Inc. v. Pelco Sales, Inc., 212 F.R.D. 567, 570-71 (E.D. Cal. 2002) (finding that request for "all documents" relating to communications between defendant and liability insurance carrier was overly broad). (Even the

February 24, 2005 letter request for email that North Star attaches to its motion does not identify any particular type of email that North Star seeks.) The Court should, therefore, deny

North Star's motion to compel production of electronic documents responsive to its December 24, 2004 Requests for Production Nos. 1, 2, and 3. Cf. Quality Aero Tech., Inc. v. Telemetrie

Elektronik GmbH, 212 F.R.D. 313, 317 (E.D.N.C. 2002) (denying motion to compel request for "any and all correspondence by and between the parties, and/or their agents or representatives, to this action during the period 1995--present," finding that "the language of Plaintiff's request, absent some measure of specificity, could lead to a potentially limitless production,"

2

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 3 of 6

and noting that plaintiff did not "list the particular documents it requests"). In addition, in view of North Star's failure to identify any particular documents it seeks, or to explain how it would be prejudiced absent the production of deleted email, the recovery of deleted email would be unduly burdensome. By April 28, 2005,

we identified a vendor that could attempt to recover email from hard drives. Def. App. 9. (We held off delivering hard drives

to the vendor in part because, on the same day, at page 16 of its Motion For Sanctions, Other Remedies, And A Preservation Order Due To The Government's Admitted Spoliation Of Documents, North Star requested specific relief from the Court that may not have been identical to the services that the vendor would have provided.) hard drive. The cost of that attempt would amount to $3,462 per Def. App. 11. Although we suspect that only two

hard drives contain email that might be recoverable, in view of North Star's failure to identify any particular email it seeks, or to demonstrate any prejudice that would result from the absence of deleted email, that cost would be unduly burdensome. Finally, it is not clear that North Star's requests are within the scope of discovery that the Court permitted in its September 3, 2004 order. Paragraph 3(iii) of that order allowed

North Star to depose seven named persons regarding two issues: "defendant's alleged `stockpiling' of units in the period from 3

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 4 of 6

November 2001 through February 2002 and continuing" and "decisions issued by the Contracting Officer on or about August 23, 2001, and October 30, 2001." Paragraph 3(v) of that order

provided that "[o]n or before March 18, 2005, the parties shall complete all other discovery outstanding in the two other cases now consolidated in No. 98-168C." Neither party, apparently,

interpreted paragraph 3(v) as referring only to discovery that had already been propounded by September 3, 2004. Indeed, in our

response to North Star's motion for sanctions, we brought to the Court's attention both North Star's December 24, 2004 Requests For Production Nos. 1, 2, and 3, and our January 24, 2005 objections to those requests. Defendant's Response To

Plaintiff's Motion For Sanctions, Other Remedies, And A Preservation Order Due To The Government's Admitted Spoliation Of Documents at 3. However, the Court's May 26, 2005 order denying North Star's motion for sanctions refers to paragraph 3(iii)'s limitations upon discovery, as well as to the lack of any allegation that allegedly destroyed documents were within the scope of permissible discovery, and states that "[i]t therefore appears that plaintiff is engaging in discovery outside the scope provided for by order of this court." That suggests that the

Court contemplated that no new discovery, aside from the depositions allowed by paragraph 3(iii), would be propounded 4

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 5 of 6

after September 3, 2004.

If that is the case, then North Star's

December 24, 2004 Requests For Production Nos. 1, 2, and 3 are outside the scope of discovery permitted by the Court's order, and should not be the subject of a motion to compel. For these reasons, the Court should deny North Star's motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen by s/Brian M. Simkin DAVID M. COHEN Director

OF COUNSEL WILLIAM. M. EDWARDS Assistant District Counsel United States Army Corps of Engineers

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 307-0361 Facsimile: (202) 514-7965 Attorneys for Defendant

June 24, 2005

5

Case 1:98-cv-00168-FMA

Document 288

Filed 06/24/2005

Page 6 of 6

Certificate of Filing I hereby certify that on June 24, 2005, a copy of the foregoing Defendant's Response To Plaintiff'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. the Court's system. Parties may access this filing through

s/Timothy P. McIlmail