Free Reply to 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
CAROLE and ROBERT TESTWUIDE, et. at,

Plaintiffs,
No. 01- 201

L

Judge Wolski

THE UNITED STATES,

Defendant.

DEFENDANT' S REPLY IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF DEFENDANT' S MOTION FOR PROTECTIVE ORDER

INTRODUCTION
Plaintiffs moved this Cour to order defendant to produce unredacted documents
that were withheld pursuant to the attorney-client and attorney work-product privileges and to compel witnesses Joseph Czech and Alan Zusman to appear at a second deposition

to answer questions regarding work performed by Mr. Czech for defendant. Plaintiffs
motion also seeks costs for the depositions of Mr. Czech and Mr. Zusman.
Defendant opposes plaintiffs ' motion to compel on procedural and substantive
grounds , and has moved for a protective order , pursuant to RCFC 26(c), to preclude

production of the documents in question and barring any additional deposition of Mr.
Czech or Mr. Zusman concerning privileged information.

ARGUMENT

PLAINTIFFS' MOTION TO COMPEL IS PROCEDURALLY DEFICIENT
Plaintiffs ' motion fails on procedural grounds because it does not comply with the

reasonable notice and confer requirements specified in RCFC 37. Plaintiffs rely on a July

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, 2005 letter to satisfy the requirement to seek the disclosure in good faith without

cour action.

Pls. '

Mot. to Compel (Exhibit 4 pp 4- 6).

In the letter

, plaintiffs requested

additional information concerning the privileges asserted as to certain withheld
documents and a portion of Mr. Czech' s deposition testimony where he was directed not

to answer questions that may have revealed privileged communications. Plaintiffs now
erroneously claim that defendant " ignored the letter for three months " and describe

defendant's assurances that it was reviewing the documents as " specious. "
pp 2- 3.
Plaintiffs '

Pits. '

Reply

unfounded allegation that defendant disregarded their request

concerning the documents and Mr. Czech' s testimony is belied by the evidence.

Defendant responded to plaintiffs ' letter with an e-mail on August 2 2005 informing

plaintiffs that it was reviewirig the requested documents. Pls. ' Mot. to Compel (Exhibit 4
pI). In

its initial review defendant identified a bates-number discrepancy in two of the

documents , which was clarified in the August 2 , 2005 e-mail.

Moreover , plaintiffs noted in their July 28 , 2005 letter that they would wait for
defendant' s response before considering a motion to compel , which would have been

consistent with the procedures the parties have followed throughout discovery during this
test case. Pls. ' Mot. to Compel (Exhibit 4 pp 4- 6). Both parties have communicated

many times concerning discovery disputes , and have always given adequate notice prior

to seeking court assistance if a dispute could not be resolved. This is the only instance
where a party has failed to notify opposing counsel that it intended to seek court

intervention to resolve a discovery dispute. Def. s Resp. (Exhibit A). Given the
procedures the parties have followed to resolve discovery disputes , plaintiffs ' stated position that it would wait for a response before considering a motion to compel , and

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defendant' s notification that it was reviewing the privileged material , plaintiffs did not

satisfy the meet and confer requirements when they failed to inform defendant that they

intended to fie a motion to compel.
Turning to Mr. Zusman s deposition testimony, there has been no notice or meet

and confer regarding the assertions of privilege during Mr. Zusman s deposition.

Plaintiffs do not dispute that they did not contact defendant regarding Mr. Zusman

testimony prior to filing their motion to compel. Pits. ' Reply p 3. Instead , plaintiffs once
again point to their July 28 , 2005 letter to satisfy the notification requirements for Mr.
Zusman s testimony despite the fact that he was not deposed until September 19 2005.

As discussed above , plaintiffs ' July 28 , 2005 letter was insufficient to meet the

reasonable notification requirements for the matters expressly discussed in the

letter- certain privileged documents and Mr. Czech' s testimony. As such , it could not
provide sufficient notice regarding Mr. Zusman s testimony, which had not yet occurred. Plaintiffs now attempt to stretch what is an already deficient notification to
include Mr. Zusman s deposition testimony by claiming that it is the same " privilege
issue. "
Pits.

' Reply p 4. Plaintiffs claim that defendant " aligned Mr. Zusman s testimony

with Mr. Czech' s testimony regarding the Mystery Project I ... (and) (g)iven the complete

lack of response by Defendant from July 28

though September 19

on this particular
Pits.

privilege issue , it would have been futile to try to resolve the Zusman dispute. "
Reply p 4.

First , as discussed above , defendant did respond to plaintiffs regarding the July
2005 letter and informed them that the matter was under review. Second , resolving

I The sinister-sounding tenn " Mystery Project" is entirely an invention of plaintiffs

' counsel , as they freely

admitted in the memorandum fied with their Motion to Compel.

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plaintiffs ' challenges to Mr. Zusman s deposition testimony was not futile by any means.

Plaintiffs ignore the fact that when the issue was presented to defendant for the first time
through plaintiffs ' motion to compel , defendant reviewed Mr. Zusman s work on behalf

of the Navy, and determined that certain limited information pertaining to efforts in the

year 2000 that were directed by the Commanding Officer , NAS Oceana , and not by
counsel , may be discoverable without revealing privileged information. Defendant

agreed to limited fuher discovery on such matters at a time and manner mutually

agreeable to the parties. Def.'s Resp. p 1Finally, the mere fact that Mr. Zusman and Mr. Czech were both involved in

privileged technical analyses conducted by Wyle labs between February 1999 and February 2000 does not mean that a meet and confer regarding the deposition testimony

of one of them applies to the other. Plaintiffs cite no authority for their assertion to the
contrary. At a minimum , Mr. Zusman , acting as the intermediary between Mr. Czech and

Navy counsel , would be involved in privileged communications with counsel that would

not have included Mr. Czech. Therefore , Mr. Zusman would be privy to certain
communications and information that Mr. Czech would not.

II.

THE DOCUMENTS HAVE PRO PERL Y BEEN WITHHELD AS PRIVILEGED COMMUNICATIONS
The documents plaintiffs have requested involve privileged communications that

occured in October through December 2001 , after the original
fied and during the FI

Testwuide case had been

18 ElF East Coast basing NEP A process. In their Reply brief

plaintiffs erroneously claim that these documents are not privileged because they were
par of the preparation of the
FIA- 18 ElF
Environmental Impact Statement ,
Plts.

and therefore

(were) not in anticipation of litigation. "

' Reply p 10. Plaintiffs quote the portion

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of Ronald Borro s declaration that summarizes the general topic of these
communications:

The issue that is at the heart of the communications , i. , efforts to
obtain more accurate information about how the F

A - 18

CID

aircraft and

14 aircraft were being flown at NAS Ocean , was relevant both to F/A- 18 ElF establishing the baseline noise environment used in the East Coast basing EIS and to understanding to what extent use of any inaccurate information had affected the projections of noise contained in F/A- 18 CID aircraft from NAS the EIS for the realignment of the Cecil Field to NAS Oceana.
Pits. ' Reply p 10 (emphasis in Pits. ' Reply). Plaintiffs failed to include Mr. Borro ' s

explanation that immediately followed that excerpt , which demonstrates that this effort
was also directly related to the

Testwuide litigation , as well as anticipated litigation:

This noise projection is a centerpiece of the plaintiffs ' complaint. Navy attorneys and Deparment of Justice attorneys were therefore necessarily involved in these communications for puroses of the ongoing NEP A analysis , including potential litigation arising from the process , and for the puroses of the pending Testwide litigation.
Borro Declaration

7. As plainly demonstrated , there is a direct nexus between the

communications and the current litigation , as well as the potential for further litigation
associated with the proposed realignment of the

FIA- 18 ElF

(Super Hornet).

Plaintiffs raise no other challenges to the privileged documents in their Reply

other than the assertion that Mr. Borro has made a " self-serving confirmation that the
communications qualify for the privilege. 2 Pits.' Reply p 10. Mr. Borro confirmed that

2 Plaintiffs argued in their motion to compel that the assertion of privilege to at least 19 ofthe
documents was waived because the communications were received by Micah Downing and Geral Long, who are employed at Wyle. Pits. ' Mem. p 12. As discussed in defendant's Response , these attorney-client privileged communications did not lose their protection simply because Wyle Lab employees were participants in the e-mail discussions. Def.'s Response pp 6 , 10. As the Navy s primary contractor for analyses of aircraft noise , Wyle Labs was , in effect , an extension of the Navy in this area of technical expertise; therefore , the attorney-client privilege extends to communications with Wyle Labs ' employees. See In re Bieter Co. 16 F.3d 929 934 9367- 40 (8th Cir. 1994); see also McCaughert v. Siffennan , 132 R.D. 234 (N. D. Cal. 1 990)(attorney-client privilege can extend to consultants when they are the functional equivalents of employees). Plaintiffs have apparently abandoned their argument that the

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the communications were privileged , but he did not simply make " conclusory
allegations " to that effect as plaintiffs assert. Pits. ' Reply pp 10- 11. Mr. Borro reviewed

the privilege log and the communications , and verified that they were exchanges between
counsel , or between counsel and Navy clients , and were intended to be confidential.
Borro Declaration ~ 7.

He further confirmed that the communications were " critical in

conjunction with the then- pending Testwuide litigation and in anticipation of litigation
arising from the

FIA- 18 ElF East Coast basing process. "

Borro Declaration ~ 7. Only

after Mr. Borro s thorough review of the communications and the context in which they

were made did he confirm that they were protected by the attorney work product and
attorney- client privileges. Borro Declaration ~
7. Based on the

foregoing, plaintiffs

assertion that Mr. Borro summarily concluded that the documents were privileged is
without merit.

III.

THE ASSERTION OF PRIVILEGE WAS APPROPRIATE REGARDING ALAN ZUSMAN AND JOSEPH CZECH' S DEPOSITION TESTIMONY
The assertion of privilege with regard to the deposition testimony of Joseph Czech

and Alan Zusman concerned consulting work that occured in 1999.

As Mr. Borro

described , these technical analyses were performed at the direction of Navy counsel in

anticipation of litigation and for the purpose of providing information to counsel so that

they could provide advice regarding such litigation. Borro Declaration ~ 5.

Mr. Czech

was a Wyle Laboratories engineer , conducted the consulting work at the immediate
direction of Alan Zusman , the Navy s principal adviser on aircraft noise and land use

planing, who in tur

acted under

the direction of Navy counsel. Borro Declaration ~

privilege was waived because of " dissemination " to Wyle employees considering that they failed to address it in their Reply.

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Plaintiffs argue that the technical analyses Mr. Czech conducted in coordination

with Mr. Zusman were not privileged. Plaintiffs contend that the work was conducted at
the behest of the NAS Oceana commander rather than under the direction of Navy
counsel. Pits. ' Reply pp 5- 8. Plaintiffs focus on Mr. Zusman ' s deposition testimony

where he identifies the positions of various NAS Oceana personnel that Wyle would have

reported to in addition to Mr. Zusman. Pits. ' Reply pp 6- 8.

Plaintiffs correctly note that

Mr. Zusman did not identify Navy counsel among the individuals Wyle would have

discussed the work with. As defendant noted in its Response , but the plaintiffs ignored in
their Reply, the defendant has determined after further careful review that some work
Wyle conducted in the year 2000 was directed by NAS Oceana s commander , not Navy
counsel.

This work is not privileged and defendant has therefore agreed to further

discovery on this matter at a time and in a maner agreeable to the parties.

Conversely, the earlier analyses Mr. Czech conducted were privileged. At that
time , the NEPA litigation challenging the Navy
s decision to realign

FIA- 18 CID

aircraft
The

from NAS Cecil Field to NAS Oceana was ongoing. Borro Declaration ~~ 4- 6.

plaintiff in that case, Citizens Concerned About Jet Noise (CCAJN), had advertised on its

website that it intended to fie

a class action inverse

condemnation lawsuit against the

Navy. Borro Declaration ~ 4. To evaluate the risks associated with this anticipated
litigation , Navy counsel directed Wyle Labs to prepare certain technical analyses

through Mr. Zusman , the Navy s principal adviser on aircraft noise. Mr. Czech was the
engineer that conducted these analyses. Borro Declaration ~ 5.

if his " work (was) for the purpose oflitigation , Mr. Czech responded It was for the purposes of potential litigation. Exhibit (Czech Transcript) pp 67- 68. These analyses were therefore decidedly not " part of the Navy nonnal operations involving aircraft noise " as plaintiffs assert.

3 Mr. Czech made clear in his deposition that he understood this at the time. When asked

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As Mr. Borro noted

4 these privileged analyses involved several offices and

commands within the Navy, all of which were responsible for land use planning, aircraft
operations , aircraft noise compatibility, and the environmental impact analysis underlying
the decision to relocate

FIA- 18 CID

aircraft to NAS Oceana. Borro Declaration ~ 6.

Based on their respective responsibilities , these offices and commands were critical

paricipants in the analysis underlying Navy counsels ' evaluation of litigation risk. Borro
Declaration ~ 6. Counsel from the Navy and Department of Justice relied on this analysis

in advising senior management regarding what was at the time potential inverse

condemnation litigation. Moreover , these privileged communications remained
confidential and were not disseminated beyond Navy personnel who had a legitimate

need for the information as par of the analyses. As such , they are protected by the
attorney- client privilege.
Cl. 481 , 484- 85 (2000).

See generally Energy Capital Corp. v. United States , 45 Fed.

4 Plaintiffs

argument that Mr. Borro s declaration is suspect because it was written " after- the- fact" is that the declaration was written recently, as part of defendant's response to the Motion to Compel , but the underlying facts are not new. In fact , Mr. Borro made clear in his declaration that the efforts he described in that declaration were efforts he was personally involved with at
unpersuasive. It is certainly tre

the time they were occuring. Borro Declaration

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CONCLUSION
For the foregoing reasons, as well as those detailed in Defendant's Response to
Plaintiffs ' Motion to Compel Discovery and Defendant's Motion for Protective Order

the Navy has properly asserted privilege for the documents and information sought by

plaintiffs. Accordingly, plaintiffs ' motion to compel should be denied and defendant
respectfully requests that this Cour grant defendant's motion for a protective order.
Dated this 5 day of December , 2005.

Respectfully Submitted

Steven D. Bryant STEVEND. BRYANT KELLE S. ACOCK United States Department of Justice Environment and Natural Resources Division Natural Resources Section O. Box 663 Washington , DC 20044- 0663 Email: steven. bryant(fusdoj . gov Voice: (202) 305- 0424 Fax: (202) 305- 0267
Isl

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CERTIFICATE OF SERVICE
DEFENDANT' S REPLY IN OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL AND IN SUPPORT OF DEFENDANT' was served this 5 day of December 2005 MOTION FOR PROTECTIVE ORDER electronically to Jack E. Ferrebee , Hoffheimer/Ferrebee , P. , 1060 Laskin Road , Suite 12- , Virginia Beach , Virginia 23451.
I certify that a copy of the foregoing

Steven D. Bryant STEVEN D. BRYANT

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Exhibit

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April 7 ,

Joseph J. Czech

2005

Arlington , V A

There was some investigation into sound

insulation that I participated

Okay.

in. Anything else?
m directing him not to
s privileged.

MR. BRYANT:

answer anything that'

Well, the question is is there anything

else.

So is there something beyond your question
And that' s just yes or

that you did work on?

no.

Yes.
The work that you did that you can

answer

was that while you were a Wyle employee?

Did you say that I can answer or can

Cannot.
Yes.
It was during while I was a Wyle

employee.
So that was before you left in 2000?

Correct.
When did you do this work that you can
answer about?

During 1998.
How many proj ects -- were they discrete

proj ects?
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April 7 ,

Joseph J. Czech
Arlington ,

2005

VA

MR. BRYANT:

Could you clarify that

question?
MR. QUINN:

Can we go off the record?

MR. BRYANT:

Sure.
The time is

THE VIDEOGRAPHER:
Off the record.

11:53:15.

(Recess) .
THE VIDEOGRAPHER:
time is 11:5 5 : 4 9 .

On the

record.

The

BY MR. WOLF:

When in 1998 were you working on the
proj ect you re asserting a privilege for?

It would have been anytime between

February ' 98,

maybe, and the end of the year

possibly.
this proj

I don t recall the exact

dates.

And were you working with Mr. Zusman on

ect?
Yes.
Who else were you working with?

He was our point of contact for our

client.

He was our

client.

He was our client

point of contact.

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April 7 ,

Joseph J. Czech

2005

Arlington , VA

Did you have any meetings or
conversations with anyone other than Mr. Zusman
from the Navy on this

proj ect?

Yes, but I can t recall their names.

believe it was someone with Navy

legal.

They

wouldn t have been separate conversations

either.

They would have been with Mr. Zusman most likely

present.
Were they face-to- face meetings?
Some were in the office here and some

were just over the

telephone.

Did you ever have conversations with

Mr. Zusman when there was no legal representative
present regarding this work?

Yes.
How often did you talk to him?

, in some periods on a daily

basis.

And generally what was the nature of the
wo r k?

Was it an investigation?
MR. BRYANT:

If it' s an investigation,

you can answer that

question.

It was an investigation.

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April 7 ,

Czech

2005

Arlington

Did it involve the nOlse contours at NAS

Oceana?
MR. BRYANT:

Do not answer that

question.
MR. WOLF:

What' s the privilege?

MR. BRYANT:

Attorney- client
I didn t ask him a

and

attorney work product privilege.
MR. WOLF:

communications question.

I asked him if his work
So there s no

invol ved noise contours.
communication with an
MR. BRYANT:

attorney.
Attorney work product.

You re getting into clearly the

subj

ct matter of

what was done.

And this clearly falls within the
I don t have a problem with

privilege
that kind of

I mean,

forming a background in terms of time and

place,

thing.

But that'

s getting wi thin the

substance of what was done and is clearly within
the privilege.

Was your work for the purpose of

litigation?
MR. BRYANT:

If you know the

answer.

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April 7 ,

Joseph J. Czech

2005

Arlington

you don t know don t say that you

do.

It was for the purposes of potential

Ii tigation.
Was the potential the lawsuit that we

invol ved in today
deposition for?

that we re here to take this

MR. BRYANT: know --

Again , if you know or don

There would be know way of me knowing if

it was for this particular litigation or

not.

Do you know it was for potential

litigation because someone told you that?
MR. BRYANT:

I direct you not to answer

tha t .

You re getting into communications at this

point.
How do you know it was for potential

Ii tigation?
MR. BRYANT:

Again, same privilege.

Don t answer.
Was it just this one proj ect you worked

on other than the investigation into sound

insulation?
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