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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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Joseph J.
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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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