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

Case 1:01-cv-00201-VJW

Document 172

Filed 05/26/2006

Page 1 of 2

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

Judge Victor J. Wolski

DEFENDANT UNITED STATES' RESPONSE TO PLAINTIFFS' MOTION FOR CLARIFICATION Defendant United States of America, by and through the undersigned counsel, hereby files this Response to plaintiffs' Motion for Clarification of the Court's April 20, 2006 Order. 1 The Order directed defendant to provide the Court with unredacted versions of the documents that were the subject of plaintiffs' Motion to Compel for in camera review, as well as a supplemental privilege log related to those documents. The redacted documents were attached to plaintiffs' Motion to Compel as Exhibit 1. On April 28, 2006, defendant delivered unredacted versions of the documents referenced in the Court's April 20th Order to the Court for in camera review. Additionally, defendant provided a supplemental privilege log and an amended supplemental privilege log related to those documents on May 2nd and 3rd, respectively.
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Although it is not relevant to their Motion for Clarification of the Court's April 20, 2006 Order, plaintiffs nevertheless assert that in their opposition to the Defendant's Motion for Protective Order regarding the Wyle subpoena they opposed that Motion "in part on the grounds that Plaintiffs objected to Defendant `representing' Wyle and "filtering or reviewing" the documents prior to Wyle's response to the subpoena." Plts.' Mot. for Clarification p1. Defendant disagrees that plaintiffs made this argument in their Motion in Opposition to Defendant's Motion for Protective Order. In a factual background section of their opposition, plaintiffs did recount certain informal objections plaintiffs previously made to defendant's counsel concerning defendant's counsel reviewing Wyle documents related to the subpoena. Plts.' Opp'n p 4. But the plaintiffs did not make those same objections to the court in their opposition; in fact, those objections are not even mentioned in either the argument or in the prayer for relief. It necessarily follows that the defendant has not had an opportunity to respond to such an argument. . Defendant's Motion for Protective Order concerning the Wyle subpoena filed on February 28, 2006, is pending before the Court.

Case 1:01-cv-00201-VJW

Document 172

Filed 05/26/2006

Page 2 of 2

Accordingly, defendant complied with the Order and does not agree with plaintiffs' assertions that the Order needs clarification. For the foregoing reasons, defendant respectfully requests the Court deny plaintiffs' Motion for Clarification.

Dated: May 26, 2006

Respectfully submitted, /s/ Steven D. Bryant Steven D. Bryant Kelle S. Acock Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3205 Washington, D.C. 20004 Counsel for Defendants 202-305-0424 Of Counsel: Robert J. Smith Mary Raivel Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374 CDR Dominick Yacono JAGC, USN Commander Navy region Mid-Atlantic, Code (00LE) 1510 Gilbert Street Norfolk, VA 23511-2737

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