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

Case 1:01-cv-00201-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (E-Filed: July 5, 2006) CAROLE AND ROBERT TESTWUIDE, Et. Al., Plaintiffs, ) ) ) ) ) ) ) ) ) ) No. 01-201 L Honorable Victor J. Wolski

THE UNITED STATES, Defendant.

____________________________________) DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL DEFENDANT TO PRODUCE ADDITIONAL DOCUMENTS IN CAMERA Defendant United States of America hereby files this Response in opposition to Plaintiffs' Motion to Compel Defendant to Produce Additional Documents In Camera. Pursuant to the Court's order entered April 20, 2006, defendant delivered unredacted documents responsive to plaintiffs' first motion to compel to the Court for in camera inspection on April 28, 2006. Plaintiffs have now filed a new motion to compel on June 14, 2006, arguing additional documents, which plaintiffs' claim were requested in their initial motion, should be produced to the Court for in camera review. This new motion should be denied. The additional documents sought by plaintiff were not the subject of plaintiffs' first motion to compel. Moreover, plaintiffs' new motion to compel fails to provide any justification to support production of these additional documents. Accordingly, plaintiffs' motion to compel the production of additional documents must be denied.

Case 1:01-cv-00201-VJW

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Factual and Procedural Background On October 24, 2005, plaintiffs filed a Motion to Compel Discovery requesting the Court compel defendant to produce unredacted versions of documents from late 2001 included as Exhibit 1 attached to plaintiffs' motion. In a separate section of this motion to compel, plaintiffs moved the Court to direct witnesses Joe Czech and Alan Zusman respond to deposition questions that defendant's counsel had directed them not to answer based on the attorney-client and attorney work product privileges. See Plts. First Mot. to Compel, pp. 1 -2; see also Plts. Mem., pp. 11-17. Defendant responded to plaintiffs' motion on November 10, 2005, and simultaneously moved for a protective order for its privileged documents and information. In its response, defendant argued that Plaintiff's motion to compel should be denied because the redacted material in plaintiffs' Exhibit 1, as well as the information sought at the Czech and Zusman depositions, were, and are still, clearly protected by the attorney-client privilege and attorney-work product doctrine. See Deft. Resp. and Mot. for Protective Order. Further support for defendant's response and motion for protective order was provided through the declaration of Mr. Ronald Borro, Deputy Assistant General Counsel (Installations and Environment) for the Department of the Navy, attached as Exhibit B to defendant's response and motion. On April 20, 2006, the Court ordered defendant to "provide the Court with unredacted versions of the documents requested by plaintiff's Motion to Compel for in camera review." The Court also ordered that defendant file a supplemental privilege log identifying each person to whom the document was disclosed, those persons' official positions, whether they were attorneys, and the purpose for the disclosure. See Court

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Order entered April 20, 2006. Defendant complied with the Court's order on April 28, 2006, by delivering to the Court the documents specifically identified in Exhibit 1 to plaintiffs' motion to compel. On May 3, 2006, defendant filed an amended supplemental privilege log providing the information required by the Court's Order. From May 9, 2006, to June 14, 2006, the parties exchanged e-mails and correspondence disputing whether Mr. Czech's technical analyses1 were the subject of their October 24th motion to compel. Exhibit A.2 Defendant repeatedly informed plaintiffs that Mr. Czech's privileged analyses were not the subject of their October 24th motion to compel. Instead, these documents were part of an overall litigative risk analysis that occurred between February 1999 and February 2000. The documents that were the subject of plaintiffs' October 24th motion to compel were prepared in 2001 and were expressly referenced in plaintiffs' motion. Argument In their instant motion to compel additional documents, plaintiffs ask that the Court direct the Government to turn over unredacted copies of the documents listed in Exhibit 2, and also to turn over to the Court "all of the other documents that pertain to the Mystery Project and/or RFP 29." Plts. Mot., p. 6. Plaintiffs claim these additional documents were the subject of plaintiffs' motion to compel filed on October 24, 2005, and therefore, should have been delivered to the Court for in camera review. For the following reasons, plaintiffs' motion to compel additional documents must be denied.

Plaintiffs refer to these analyses as the "Mystery Project." Plts. Oct. 24th Mot. to Compel, p. 2. Correspondence between plaintiffs' counsel and defendant's counsel occurring between May 9, 2006, and June 14, 2006, including a letter dated May 12, 2005, from Kieron Quinn to Steve Bryant with two exhibits, is attached to defendant's response as Exhibit A.
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I.

Documents Relating to Analyses Performed by Joseph Czech Were Not the Subject of Plaintiffs' First Motion to Compel And Are Protected from Production

Plaintiffs first claim that Mr. Czech's technical analyses, listed in Exhibit 2 attached to their motion to compel additional documents, were the subject of their motion to compel filed on October 24, 2005. Plaintiffs' assertion is without merit. Mr. Czech's technical analyses, listed in Exhibit 2 attached to plaintiffs' June 14th motion, were not the subject of plaintiffs motion to compel filed on October 24th.3 Rather, the only documents that were the subject of their October 24th motion were the documents explicitly referenced in Exhibit 1 attached to their motion. See Plts.' Mot., pp. 1-2 (requesting the Court order defendant "to produce unredacted copies of the documents identified in Exhibit 1 to the motion to compel . . . ). Additionally, the newly requested documents for in camera review were not the subject of the Court's April 20th Order. The Court's April 20th Order specifically directed defendant to "provide the Court with unredacted versions of the documents requested by plaintiff's Motion to Compel." That motion specifically referred to the documents referenced in Exhibit 1 attached to plaintiffs' motion to compel. Pursuant to the Court's Order and the plaintiffs' specific reference to Exhibit 1, defendant delivered unredacted versions of these documents to the Court on April 28, 2006, for in camera inspection. In his declaration, Mr. Borro explained in detail why the litigation risk assessment conducted between February 1999 and February 2000, which included Mr. Czech's technical analyses, was protected by both the attorney-client privilege and the attorney
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The privilege log contains three separate entries related to Mr. Czech's privileged analyses; however, there are four documents associated with these entries.

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work product protection.4 Declaration of Ronald Borro ("Borro Decl."), attached to defendant's response and motion for protective order as Exhibit B, ¶¶ 4-6. Plaintiffs have failed to assert any substantive argument as to why the documents relating to Mr. Czech's technical analyses are not privileged, other than to restate the brief claim in their reply brief that "the analysis that applies to the Czech and Zusman testimony . . . applies equally to these documents." Reply in Support of Plts.' Mot. To Compel p. 4. The attorney-client privilege and attorney work product doctrine protections have been properly asserted regarding the documents relating to Mr. Czech's technical analyses, and a proper foundation for asserting them has been made in defendant's privilege log and Mr. Borro's declaration. These protections have not been waived. II. All Documents Responsive to RFP No. 29 Were Not the Subject of Plaintiffs' Motion to Compel In addition to documents relating to Mr. Czech's technical analysis, plaintiffs now inexplicably request that all privileged documents5 responsive to plaintiffs' Request for Production No. 29 be delivered to the Court for in camera review. As previously stated, the only documents subject to plaintiffs' first motion to compel were those referenced in Exhibit 1 attached to their motion.6 Moreover, plaintiffs fail to assert any argument as to why the remaining documents responsive to RFP No. 29 are not privileged. To the extent plaintiffs are attempting to rely on arguments set forth in their motion to October 24th motion to

The documents that were in fact the subject of the motion to compel, by contrast, were prepared in late 2001. Borro Decl., ¶ 7. 5 In their prayer for relief, plaintiffs request the Court compel defendant to produce all documents responsive to RFP No. 29, not just those documents withheld for privilege. For the purposes of this response, defendant assumes plaintiffs intended to request production of those responsive documents, or portions thereof, withheld as privileged. 6 In their October 24th motion to compel, plaintiffs refer to "27 documents at issue. . . ." Pl. Mot. to Compel. P. 12.

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compel, defendant incorporates by reference the arguments previously asserted in its prior briefing. However, until plaintiffs articulate reasons why these specific documents are not privileged, defendant cannot adequately respond. Therefore, plaintiffs' request that all privileged documents responsive to plaintiffs' Request for Production No. 29 be delivered to the Court for in camera review must be denied.7 Conclusion For the foregoing reasons, plaintiffs' motion to compel additional documents must be denied. Dated: July 5, 2006 Respectfully Submitted,

s// Steven D . Bryant STEVEN D. BRYANT KELLE S. ACOCK United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Email: [email protected] Voice: (202) 305-0424 Fax: (202) 305-0267

In their prayer for relief, plaintiffs cursorily request two additional items not addressed in their October 24th motion or their instant motion. Plaintiffs request the Court compel defendant to produce (1) the name of the "Mystery Project" and (2) all other documents that pertain to the "Mystery Project." To the extent plaintiffs are referring to Mr. Czech's technical analyses, defendant has already addressed why these efforts, including any documents that pertain to those efforts, are privileged. It appears in item (2) above that plaintiffs are attempting to expand their request beyond the technical analyses. That would be an entirely new discovery request, which is untimely by many months. For these reasons, both requests should be denied.

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