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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

CAROL AND ROBERT TESTWUIDE, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No.: 01-201L (Honorable Victor J. Wolski)

PLAINTIFFS' MOTION TO COMPEL DEFENDANT TO PRODUCE ADDITIONAL DOCUMENTS IN CAMERA On October 24, 2005, Plaintiffs filed a Motion to Compel related to allegedly privileged documents and deposition testimony of witnesses Joseph Czech (a Wyle Laboratories employee) and Alan Zusman (a Navy employee), all related to what Defendant's counsel has referred to as the "Mystery Project". On April 20, 2006, this Court ordered that Defendant produce unredacted copies of the documents "requested by Plaintiffs' Motion to Compel for In Camera Review" and directed that the Defendant file a supplemental Privilege Log on or before April 28, 2006, identifying all of the individuals mentioned in the documents. That latter deadline was extended to May 2, 2006. On November 10, 2005, Defendant produced a revised Privilege Log as an exhibit to their response to Plaintiffs' Motion to Compel, called "Supplemental Oceana Privilege Log RFP 29, 08/31/2005, Revised 10/28/2005" (Exhibit 1)1.

1

Exhibit 1 is the third version of this particular privilege log served by the Government. The first was served on October 28, 2005 and all three versions continued to carry the October 28, 2005 date. There never was an August 31, 2005 privilege log of which Exhibit 1 is recited as a revision.

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The documents referred to in the Log are clearly related to the Mystery Project. In addition, as the last column establishes, they relate specifically to Plaintiffs' January 21, 2005 Request for Production No. 29, which is as follows: All reports, memoranda, communications, emails or other documents sent or copied by or to any of the following persons and entities concerning the revision of 1999 noise contours for Oceana and Fentress, which resulted in revised noise contours submitted in March of 2002 to this Court in Testwuide v. United States (CFV No. 01-201L) as Revised Exhibits 49 and 49A: a. b. c. d. e. f. g. h. i. j. ATAC Wyle NAVEACENGCOM Alan Zusman F/A-18 operational squadron personnel Commanding Officer, Oceana AICUZ office, Oceana FICAN City of Virginia Beach City of Chesapeake

To date in this case, Defendant has produced documents in response to RFP No. 29 eight times, from early 2005 through last week, long after discovery ended. Those production dates are as follows: 2/23/2005 3/24/2005 3/28/2005 4/21/2005 10/18/2005 1/31/2006 2/3/2006 5/25/2006 6/6/2006

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In connection with those productions, the Government has served a series of Privilege Logs alleging privileges that attach either to redacted documents or to documents not produced at all. The privilege logs submitted thus far to Plaintiffs, with regard to RFP 292, are as follows: 4/18/2005 4/20/2005 8/31/2005 10/28/2005 (see above) 3/2/2006 4/7/2006 5/3/2006 6/6/2006 Also on November 10, 2005, the same day that the Government served its third version of Exhibit 1, Defendant filed its Response to Plaintiffs' Motion to Compel and also served another Privilege Log titled "November 10, 2005 Privilege Log" (Exhibit 2). This log lists three "technical analyses" by Wyle's Joseph Czech. Defense counsel's explanation of that Log in a November 10, 2005 email (Exhibit 3) was: Attached is a privilege log covering consulting work that Joe Czech performed at Wyle in 1999 that is responsive to certain of your discovery requests.

Plaintiffs' counsel requested clarification on November 21, 2005 (Exhibit 4): Please indicate to which discovery requests you are responding. Also are you going to provide bates nos. for these documents? (Paragraph 5) Defense counsel's response on November 23, 2005 (Exhibit 5), was: Identifying the discovery requests the material at issue may be responsive to may reveal privileged information. Neither that information nor bates numbers for the material are necessary in order for you to evaluate whether the attorney client privilege or the attorney work product protections have been appropriately asserted. Nevertheless, when the documents are bates-stamped I will provide the numbers to you. (Paragraph 5)
2

These are only a portion of the privilege logs served by the Government, most of which relate to other issues.

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The Government refused and continues to refuse to identify the actual name of the documents on Exhibit 2, or their assigned bates numbers as well as which RFP or Interrogatory they are responsive to. Nonetheless, Plaintiffs explicitly stated in their November 23, 2005 Reply Memorandum in Support of our Motion to Compel:

Paragraphs 5 and 6 of the Borro Affidavit set forth the sum of the Defendant's claim to assert the privilege and work product doctrine. In essence, Mr. Borro states that Alan Zusman had Mr. Czech at Wyle Laboratories perform analyses from February 1999 through February 2000. (p. 5) For the first time, in response to the motion to compel, the Defendant has identified three documents created by Mr. Czech, which appear to be the output of the Mystery Project. Defendant has claimed the same attorney-client privilege and attorney workproduct doctrine treatment for these documents. Although the documents are responsive to prior discovery requests and existed well before the case commenced, Defendant did not identify them or place them on any prior privilege log exchanged in this case. Of course, the analysis that applies to the Czech and Zusman testimony regarding the Mystery Project applies equally to these documents. Thus, the Court should order that the documents be produced as well as ordering that Messrs. Czech and Zusman appear for deposition to answer questions regarding the Mystery Project. (p. 9-10). (emphasis added)

The Czech "technical analyses" are not only directly related to and mentioned in the Motion to Compel, but also to RFP No. 29, thus subject to the Court's in camera review of Mystery Project documents. In fact, the documents listed in Exhibit 2 may very well be the Mystery Project itself. Plaintiffs believed that all documents relevant to the Mystery Project, and particularly those alluded to in Plaintiffs' motion or their reply, were required by this Court's Order of April 20 to be delivered unredacted to the Court. After the Court's Order the Government, on May 2

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and 3, 2006, filed first a Supplemental and then an Amended Supplemental Privilege Log, along with unredacted documents for in camera review. On May 9, 2006, Counsel for Plaintiffs sent an email to Defense Counsel requesting clarification as to changes or additions between the Supplemental and the Amended Supplemental Privilege Log. (Exhibit 6). On May 10, 2006, Defense Counsel responded in an email describing differences between the Logs but then went on to say: Neither the May 2nd Supplemental Log nor the May 3rd amended Supplemental Log address the technical analysis performed by Joe Czech, which were not the subject of your Motion to Compel. (emphasis added). (Exhibit 7). Plaintiffs' Counsel then wrote Defense Counsel on May 12, 2006: The Request for Production you refuse to identify we believe to be RFP 29, which was served on Defendant almost a year and a half ago. To refuse even to identify the documents until after Plaintiffs filed a motion to compel documents relevant to a project you have never even given a name to is not the way litigation is supposed to be conducted under the Rules as we understand them. (Exhibit 8) Defense Counsel responded on May 15, 2006: Given that the documents relating to Joe Czech's analyses were not the subject of your motion to compel, nor the Court's order, we did not provide them to the Court. (Exhibit 9)

Joseph Czech's "Technical Analyses" were the subject of Plaintiffs' Motion to Compel. Those documents were specifically discussed in Plaintiffs' Reply Memorandum and should be produced to the Court for in camera review. In addition, the May 3d Privilege Log that Defendant provided to the Court lists every document as responsive to Plaintiffs' RFP No. 29. Defendant has produced eight Privilege Logs to date listing documents responsive to Plaintiffs RFP No. 29. All of the documents listed on those

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Logs should have been produced to the Court, and those not previously produced should be produced at this time. Plaintiffs' Counsel sent an email to Defense Counsel on June 12, 2006, advising that if the documents were not produced to the Court by close of business on June 14, 2006, Plaintiffs would file the present motion. (Exhibit 10). On June 14 counsel for the Government declined to produce any additional documents to the Court stating that they were not the subject of Plaintiffs' motion. Conclusion We request that the Court direct that the Government identify the name of the Mystery Project, turn over unredacted copies of the three documents listed in Exhibit 2, and turn over to the Court all of the other documents that pertain to the Mystery Project and/or RFP 29. Respectfully submitted,

/s/ Jack E. Ferrebee __ Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected]

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Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig Shuttleworth, Ruloff, Giordano & Swain 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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