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Case 1:98-cv-00168-FMA

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

No. 98-168C (Judge Allegra)

DECLARATION OF DONALD E. KINNER 1. I, Donald E. Kinner, am counsel of record for the

United States in the above-captioned case, and I submit this declaration pursuant to the order of the Court on July 17, 2002 to detail the steps I had taken to obtain documents responsive to plaintiff's supplemental discovery requests, specifically request for production ("RFP") Nos. 7, 10, and 11, served upon defendant on June 7, 2002. 2. I had initially prepared a draft of this declaration on At that time, my recollection of these events was Due to the

July 18, 2002.

significantly better than it is in September 2004.

subsequent suspension of the case, this declaration has not been submitted to the Court until October 1, 2004. As noted below,

upon renewed direction of the Court, on September 3, 2004, for me to submit a declaration, I again verified the efforts to ensure the accuracy of the Government's responses to North Star's supplemental discovery requests. However, this declaration is

based upon my contemporaneous 2002 draft. 3. Upon receipt of North Star's supplemental discovery

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requests on June 7, 2002, I caused those requests to be transmitted to then agency counsel, Scott R. Marchand, Assistant District Counsel, United States Army Corps of Engineers, Alaska District. I had previously informed Mr. Marchand and other

agency officials that the Court had established a schedule in this matter that required service of North Star's supplemental requests on June 7, and that the schedule required our response to those requests by June 28, 2002. Mr. Marchand transmitted the

requests to the Army and Corps personnel who would potentially possess knowledge of the information requested or possess potentially responsive documents. 4. In response to those requests, officials of the Corps

and the Army provided documents that were responsive to the requests for production, including requests 7, 10, and 11 to my office. The documents included hard copies and copies of a In

compact disc containing images of responsive documents.

accordance with the Court's order regarding additional discovery by North Star, on June 28, 2002, I caused to be served upon North Star our responses to its requests, including RFP 7, 10, and 11. RFP No. 7 5. North Star's RFP No. 7 requested "any and all documents

reflecting the Government's schedule of change of occupancy maintenance, including when units are vacated by occupants and when North Star is notified of the unit turnover date."

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6.

On June 22, 2002, I was informed that officials in the

Army housing office were working on the response to RFP 7 as it was by far the largest one. I was informed that the responsive

documents which the Army personnel had identified and collected included documents going back to the beginning of the lease, such as notification of scheduled change of occupancy forms, downtime spreadsheets, notification of work completion, and resident termination orders. I was informed that the hard copy of these I was informed

documents consisted of about 5 full file boxes.

that the Army personnel were recording images of the responsive documents for RFP 7 on a compact disc and that the plan was to ship the disc to me on Monday, June 24, 2002. 7. Due to the processing and shipping time required, the At that time,

discs were not received by me until June 27, 2002.

I installed the discs into my computer and reviewed a number of pages of documents in each file on the disc. I did this

primarily to ensure that North Star would have no difficultly accessing the files or images, however, in doing so I also confirmed that the disc contained the thousands of documents responsive to RFP 7. I have again reviewed a copy of the compact The documents collected on

disc which we produced to North Star.

the compact disc specifically reflected "the Government's schedule of change of occupancy maintenance, including when units are vacated by occupants and when North Star is notified of the

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unit turnover date," as requested in RFP 7. 8. On June 27, 2002, Mr. Marchand confirmed that the disc

contained documents responsive to request for production no. 7, regarding change of occupancy, and that he had performed a review of these documents for privilege. Mr. Marchand confirmed that

Ms. Connie Kiser, of the Army Housing office, had provided all the documents required by the Interrogatories and RFPs. RFP Nos. 10 and 11 9. North Star's RFP 10 requested "any and all documents

received by and/or relied upon by Harold Hopson in the preparation of the January 28, 2002 letter . . ." and RFP 11 requested "any and all documents, including but not limited to phone logs, calenders, and memoranda, reflecting communications among Government personnel with respect to the January 28, 2002 letter from Harold Hopson to Eldon Wartes." As written, there

could be no responsive documents to this request, because the January 28 letter was addressed to Richard Fisher, not Eldon Wartes. 10. See Attachment 5, Affidavit of Harold D. Hopson ¶ 6. Upon review of North Star's June 7, 2002 discovery

requests, I noted that several of those requests were beyond the scope of the discovery allowed by the Court. The Court's Order

of June 3, 2002 states "[p]laintiff may only pursue discovery related to the amendments to its complaint allowed by the Court's order of March 26, 2002. Specifically, plaintiff may explore two

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issues: 1) defendant's alleged "stockpiling" of units in the period from November 2001 through February 2002 and continuing . . ." See Order March 17, 2002; Attachment 5, Affidavit of

Harold D. Hopson ¶ 4. 11. Accordingly, pursuant to the Court's discussion

regarding cooperation between counsel, and its order, as well as to facilitate the parties' ability to execute the accelerated schedule set by the Court, I sent a letter to North Star's counsel on June 14, 2002 to provide him advanced notice of those inappropriate requests. See Attachment 1. In my letter I

identified the specific Interrogatories and Requests for Production that were beyond the scope of the discovery that the Court proscribed in paragraph 1 of its June 3, 2002 Order, which included RFPs 10 and 11. 12. Id.

On June 20, 2002, I discussed our objections to North In that

Star's requests with North Star's counsel by telephone.

conversation North Star's counsel agreed to limit RFP 10 and 11 to documents pertaining to its allegations of "stockpiling" as defined on page 7 of its June 7, 2002 requests. That definition

states: "[t]he term stockpiling refers to the Government's practice of holding on to vacant units and then releasing them simultaneously to North Star for the performance of betweenoccupancy maintenance." 13. On June 21, 2002, I received a letter from North Star's

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counsel and responded by letter the same day.

In my letter on

June 21, I specifically noted that "[b]ased upon North Star's agreement to limit the scope of Requests for Production 10 and 11, we withdraw that objection to those requests." Attachment 2. See

Army and Corps personnel were informed that these See

requests were limited to that scope by the Court's order. Attachment 5, Affidavit of Harold D. Hopson ¶ 4. 14.

On June 27, 2002, I sent the draft of our responses to

the supplemental requests, including RFP 7, 10 and 11, to each individual who had provided information or documents for these responses. I specifically instructed each individual to

"carefully review the responses as they are currently drafted," to insure accuracy and completeness. I received a number of

corrections and comments regarding that draft, however, none addressed RFP 7, 10, or 11. 15. As noted above, in accordance with the Court's order

regarding additional discovery by North Star, on June 28, 2002, I caused to be served upon North Star our responses to its requests, including RFP 10 and 11 "subject to our understanding with plaintiff that the request seeks information regarding only "stockpiling" as defined in its requests." Our response was that

we had identified no responsive documents because neither the Corps nor the Army identified any document responsive to either request. See Attachment 5, Affidavit of Harold D. Hopson ¶ 8.

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16.

During the afternoon of Friday, July 12, 2002, I first

saw North Star's counsel's July 10, 2002 letter objecting to several of our responses to North Star's discovery requests. Attachment 3. In his letter, Mr. Killian specifically states See

that, in request 10 and 11, North Star was seeking documents that refer to the "stockpiling portion" of the January 28, 2002 letter by the Corps. See Attachment 3, at 1. I directed that the The

letter be forwarded to the Army for review and comment.

letter was forwarded to the Army on the morning of Monday, July 15, 2002. afternoon. Then Corps counsel, Mr. Marchand, responded that

He noted that RFPs 10 and 11 sought documents He

reflecting the creation of the January 28, 2002 letter.

specifically confirmed that our initial response was accurate. Mr. Marchand also had asked the Chief of the Real Estate Division to again confirm this to be accurate. It was confirmed to Mr.

Marchand that nothing had been omitted from our responses to RFP's 10 and 11. There are no documents that refer to See Attachment

"stockpiling" of units as defined by North Star. 5, Affidavit of Harold D. Hopson ¶ 8.

Accordingly, I responded

to Mr. Killian's objections, by facsimile, on the evening of July 15, 2002, informing him that our responses were not in any way deficient. 17. See Attachment 4.

When preparing the draft of this declaration in July

2002, I had scoured every piece of correspondence that I had

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received in this matter for references to responses to these requests. In that process, I found no references to When, in September 2004, I again requested all

"stockpiling."

past and present Army and Corps personnel who were aware of the preparation of the January 28, 2002 letter to search for any document related to that letter which referred to "stockpiling," it was again confirmed that no responsive documents exist. preparatory document for the January 28, 2002 letter was an electronic draft of the letter by Mr. Marchand which he had circulated and which was deleted upon issuance of the letter. See Attachment 5, Affidavit of Harold D. Hopson ¶¶ 6, 7. 18. Upon renewal of the direction for me to submit a The

declaration regarding the Government's responses to North Star's supplemental discovery requests, I again attempted to retrace the steps which Army and Corps personnel took to identify and produce responsive documents for these requests. A few electronic mail

messages referencing Mr. Marchand's draft of the letter were identified. As explained in the supporting affidavit of Mr.

Hopson attached to this declaration, none of these electronic mail messages would be responsive to North Star's requests because they were not received by and/or relied upon by Mr. Hopson in the preparation of the January 28, 2002 letter, nor did these messages pertain to "stockpiling." Affidavit of Harold D. Hopson ¶ 8. See Attachment 5,

None of these messages could

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be responsive to North Star's requests pursuant to the Court's orders, North Star's definition, North Star's letter, Attachment 3, or my June 21, 2002 letter, Attachment 4. Certification 19. I, of course, cannot testify as to the contents of the

files or computers in the offices of the Corps or the Army in Alaska beyond the information provided to me by the custodians of the documents. There is no reason to doubt the veracity of the

individuals who provided information or documents in response to North Star's supplemental requests. Nor is there any basis to

doubt any individual's understanding of the nature or scope of the requests. Accordingly, as required by the Court's order, I

certify that I believe that, as reflected in the responses served upon North Star, no additional responsive documents exist for RFP 7, and none exist for RFP 10 or 11. I declare under penalty of perjury that the foregoing is true and correct. Executed this 1st day of October 2004.

S/Donald E. Kinner DONALD E. KINNER Assistant Director Commercial Litigation Branch Civil Division

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