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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE and ROBERT TESTWUIDE, et. al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )
No. 01-201 L Judge Wolski
DEFENDANT'S LEGAL MEMORANDUM ADDRESSING CLUSTER 4 Pursuant to this Court's order filed September 28, 2005, Defendant United States files this memorandum addressing the need to substitute a new test case plaintiff in Cluster 4. Defendant has expended considerable time and expense attempting to select a test case plaintiff for Cluster 4. Defendant first selected Gerald and Wilma Fox; however, the Foxes did not want to participate in the litigation and agreed to have their claim dismissed with prejudice. Defendant's second and third selection likewise refused to pursue their claims. To facilitate the test case moving forward in an efficient and equitable manner, Defendant respectfully requests that this Court order Plaintiffs to provide the names of those Plaintiffs located in Cluster 4 who are willing to pursue their claim against the government and those who are not. Before Defendant is required to expend additional time and expense selecting a fourth Plaintiff for the test case, Defendant must know the pool of Plaintiffs in Cluster 4 willing to pursue their claims. To that end, Defendant compiled a list of the remaining Plaintiffs (eighty-eight properties) in Cluster 4 and requested that Plaintiffs advise Defendant who among the group is willing to pursue their claim and who is not willing to
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pursue their claim. Plaintiffs' counsel have refused to provide this information, arguing that contacting eighty-eight of their clients was unreasonable. See Exhibit A. Plaintiffs counsel countered that Defendant should choose a test plaintiff from a list created by Plaintiffs' counsel containing the owners of only eleven properties. As a preliminary matter, seven of the eleven properties Plaintiffs' counsel proposed are not even located in Cluster 4.1 See Exhibit B. More importantly, Plaintiffs' approach eliminates Defendant's ability to select a test plaintiff of Defendant's choosing in accordance with the procedure adopted by the Court and allows Plaintiff to arbitrarily and significantly reduce the pool of available plaintiffs in Cluster 4 from eighty-eight (the total in the cluster) to four (those Plaintiffs' counsel has offered who are in Cluster 4). Plaintiffs' counsel have alternatively suggested that Defendant select up to twelve properties from Cluster 4. Plaintiffs counsel would then contact those clients that own the twelve properties and determine whether they are interested in pursuing their claims in the test case. This approach is unacceptable. First, it should go without saying that, after filing their complaints, every plaintiff ought to be willing to pursue their claim. Asking Plaintiffs' counsel to verify this with respect to the properties in Cluster 4 is a reasonable request in light of the fact that the first three plaintiffs selected as the test case plaintiffs for this cluster have declined to pursue their claims. It is an inappropriate restriction on that reasonable request to force the Government to unilaterally limit its pool to twelve properties in the cluster. Second, requiring Defendant to expend limited time and resources attempting to determine which twelve properties are of most interest places
1
The following properties are located in Cluster 3 rather than Cluster 4: 1. Gilbert 925 Earl of Chatham Lane; 2. Johnson 2305 Southern Points Court; 3. Keel 2424 Sedgwick Drive; 4. McCreary 804 Leighton Drive; 5. Oswald 2249 North Wolfsnare Drive; 6. Steil 913 Earl of Essex Arch; and 7. Whitley 2209 Lord Seaton Circle
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an undue and unfair burden on Defendant. Selecting even one property involves considerable research and expense. To require the government to do this for twelve properties is exceedingly burdensome, particularly in light of the fact that the Government has selected three properties from this cluster and not one of these owners has been willing to pursue their claim. Providing Defendant with a list of the remaining plaintiffs who are willing to pursue their claim and those who are not eliminates the problems with Plaintiffs' approach and permits Defendant to fairly and efficiently select a plaintiff from Cluster 4 in accordance with the procedure adopted by this Court. FACTUAL BACKGROUND On September 20, 2004, this Court ordered the parties to meet and confer over the next two months to determine a combination of parties whose claims may be appropriately tried together in a test case.2 The Court adopted the parties' joint proposal to divide the area surrounding NAS Oceana into several geographic clusters, and each party would select one test plaintiff from each cluster.3 The parties selected appropriate
2
On February 14, 2005, the Court consolidated seven other cases with Testwuide v. United States, including: Burlage, et al. v. United States, No. 04-120 L, (Wolski, J.); Adams, et al. v. United States No. 04-279 L, (Wolski, J.); Anderson, et al. v. United States, No. 04-333 L, (Wolski, J.); Beagle, et al. v. United States, No. 04-1176 L, (Wolski, J.); Ararlar, et al. v. United States, No. 04-1280 L, (Wolski, J.); Whitley, et al. v. United States, No. 04-1331, (Wolski, J.); and Price, et al. v. United States, No. 04-1718, (Wolski, J.).
3
On December 20, 2004, the Court ordered the parties to proceed with seven geographic clusters for a total of fourteen properties to be litigated in the first test case. Defendant's selection from Cluster 1, William and Nancy Wagner, requested to be excused from the test case because Mr. Wagner suffered a stroke. Thereafter, on March 22, 2005, the parties jointly moved to remove the plaintiffs selected from Cluster 1 and proceed with test plaintiffs from the six remaining geographic clusters. The Court, on April 19, 2005, adopted the parties joint motion to remove the Cluster 1 test plaintiffs, resulting in a test case consisting of six geographic clusters and a total of twelve properties.
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test plaintiffs according to this Court's Order. On February 23, 2005, counsel for plaintiffs moved to dismiss Gerald and Wilma Fox with prejudice from the Beagle, et al. v. United States, No. 04-1176 L, (Wolski, J.), action. The motion stated that Plaintiffs' counsel was unable to communicate with Mr. and Mrs. Fox regarding the case and that counsel for Defendant was prepared to select a different property to replace the Foxes. The motion also noted that counsel for Defendant agreed to a dismissal of the Foxes with prejudice. This motion is currently pending before the Court.4 On March 17, 2005, counsel for Defendant selected Kevin and Eugenia Cohen, 647 Alberthas Drive, to replace Gerald and Wilma Fox in the test case. See Exhibit C. Counsel for Plaintiffs informed counsel for Defendant on April 1, 2005, that counsel for Plaintiffs were still attempting to contact the Cohens. See Exhibit D. Approximately one week later, counsel for Defendant again inquired as to whether the Cohens intended to remain in the lawsuit. See Exhibit E. On April 14, 2005, counsel for Plaintiffs informed counsel for Defendant that Mr. Cohen wanted to remain in the litigation, but due to his wife's recent passing and schedule, Mr. Cohen was "not in a position right now to participate in the test case." Exhibit F. Counsel for Plaintiffs asked counsel for Defendant to select another property to replace the Cohens. See Exhibit F.5
4
Also pending before the Court is the Parties Joint Motion to Dismiss nine claims filed on April 28, 2005. 5 Through a series of subsequent communications, counsel for Defendant learned that Mr. Cohen was selected as a test plaintiff over one and one-half years after his wife's passing, and Mr. Cohen joined Whitley, et al. v. United States, No. 04-1331, (Wolski, J.), approximately one year after his wife's passing. See Exhibits G, H. Defendant informed counsel for Plaintiffs that it was sympathetic to Mr. Cohen's loss, and repeatedly offered to accommodate his busy schedule by being flexible in scheduling his deposition. See e.g. Exhibits G, H, I, J. Defendant noted that Mr. Cohen's time commitment to the case would be rather minimal, specifically, a deposition, producing documents, responding to
4
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On July 21, 2005, counsel for Defendant selected Scott Edelstein as the replacement test plaintiff for Mr. Cohen. On July 22, 2005, counsel for Defendant requested that counsel for Plaintiffs inform Defendant by July 29, 2005, as to whether Mr. Edelstein would participate as a test plaintiff and how long he would need to provide discovery responses. See Exhibit K. On August 5, 2005, counsel for Defendant again asked if Mr. Edelstein was willing to pursue his claim in the test case. Counsel for Plaintiffs responded on August 9, 2005, that Mr. Edelstein had not returned his phone calls or correspondence. On August 16, 2005, counsel for Plaintiffs informed Defendant that Mr. Edelstein refused to participate in the test case.6 Considering the repeated refusal of each selected Cluster 4 test plaintiff to participate, on August 29, 2005 counsel for Defendant provided Plaintiffs with a list of the eighty-eight remaining properties in Cluster 4 and requested that they contact their clients and advise who is prepared to prosecute their claim in the test case and who is not. Counsel for Plaintiffs refused to contact the owners of the eighty-eight properties. Instead, they contacted an unspecified number of plaintiffs, including several who had disconnected their phones, others who failed to return counsel's phone calls, and two property owners that asked to be dismissed from the case. Counsel for Plaintiffs then provided Defendant with a list of eleven properties from Cluster 4 and proposed that Defendant select a test plaintiff from that list. In a subsequent letter, counsel for Plaintiffs alternatively suggested that Defendant identify twelve plaintiffs from Cluster 4. ARGUMENT This Court has inherent discretion to "control the disposition of the causes on its interrogatories, and trial testimony. Nevertheless, Mr. Cohen refused to pursue his claim. 6 Defendant also intends to file a motion to dismiss Plaintiffs Kevin E. Cohen and Scott Edelstein's claims with prejudice for failure to prosecute.
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docket with economy of time." Caparco v. United States, 28 Fed. Cl. 736, 737 (1993) quoting Landis v. North American Co., 299 U.S 248, 254 (1936). Indeed, this Court may dismiss on its own motion or defendant may move for dismissal of an action or any claim for failure of the plaintiffs to prosecute or to comply with an order of the court. See RCFC 41(b). "[S]uch rulings are to be determined on a case-by-case basis which should be left solely within the sound discretion of the trial judge." Reading Anthracite Co. v. United States, 9 Cl. Ct. 63, 65 (1985), citing Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007 (1966) (emphasis in original). Despite Defendant's repeated and good faith efforts and flexibility, selecting a test plaintiff for Cluster 4 has become overly burdensome, if not impossible, because Defendant has no way of knowing which plaintiffs in the cluster are willing to pursue their claims. Plaintiffs suggest that Defendant be required to select a test plaintiff from eleven properties, seven of which are not even located in Cluster 4, out of eighty-eight properties remaining in Cluster 4. This proposal violates the Court's approved procedure that the parties each select a property from the six agreed upon geographic clusters surrounding NAS Oceana. In effect, plaintiffs are attempting to unilaterally reduce Cluster 4 from the remaining eighty-eight properties to four, a 95% reduction. Plaintiffs alternatively suggest that Defendant select twelve test plaintiffs and counsel for Plaintiffs will contact those plaintiffs and find out if they are interested in pursuing their alleged claims. This is simply the status quo, only at considerably more cost to Defendant. As mentioned above, selecting even one property involves research and expense. To require the government to pursue this effort for twelve properties is exceedingly onerous and unlikely to produce results in light of the number of plaintiffs in
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Cluster 4 that are apparently not interested in pursuing their claims. In contrast, counsel for Plaintiffs can determine which of their clients in Cluster 4 are interested in pursuing their claims with relative ease, by phone, e-mail, or correspondence. Additionally, the eighty-eight properties remaining in Cluster 4 are relatively close together, and the owners could be contacted rather quickly directly at their homes. Moreover, there is the real possibility that the owners of the hypothetical twelve properties would likewise refuse to pursue their claims. In addition to the unwillingness of the owners of the three properties Defendant has selected for Cluster 4 to participate in the test case, counsel for Plaintiffs encountered "several" plaintiffs who disconnected their phones and others who failed to return calls. The failure of these plaintiffs to inform their attorneys of their new phone numbers or return their calls certainly suggests that they are not interested in pursuing their claims. Two property owners who did speak to counsel specifically requested to be dismissed from the case. Further underscoring the futility in defendant identifying additional test plaintiffs willing to pursue their claims is the percentage that have been removed from the test case as compared to the number Defendant has selected. Defendant has selected a total of nine test plaintiffs since December 2004, from the original seven geographic clusters, plus Mr. Cohen and Mr. Edelstein. Of those nine, four have requested to be removed from the test case, a failure rate exceeding 40%. Defendant has made every reasonable effort to select a test plaintiff from Cluster 4. At this point, there is simply no justification for Defendant to expend additional time and resources attempting to select a plaintiff who may or may not be willing to pursue their claims against the government. Requiring Plaintiffs to provide Defendant with a list
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of the remaining plaintiffs who are willing to pursue their claim and those who are not avoids further delay in the litigation and will allow Defendant to fairly and efficiently select a plaintiff from Cluster 4 in accordance with the Court's prior orders. Because Plaintiffs have refused to provide this list, Defendant now has no other choice than to seek the Court's assistance in identifying those plaintiffs located in Cluster 4 who are willing to pursue their claim against the government. CONCLUSION For the foregoing reasons, the United States respectfully requests that Court exercise its discretion and order Plaintiffs to provide Defendant with a list of the remaining plaintiffs who are willing to pursue their claim and those who are not, to allow Defendant to fairly and efficiently select a plaintiff from Cluster 4 in accordance with the procedures adopted by this Court. Dated this 4th day of October 2005. 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) 305-042 Fax: (202) 305-0506
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CERTIFICATE OF SERVICE The undersigned certifies that on this 4th day of October 2005, a true and correct copy of the foregoing DEFENDANT'S LEGAL MEMORANDUM ADDRESSING CLUSTER 4 was served via electronic mail to the following counsel of record: Jack E. Ferrebee Hoffheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12B Virginia Beach, Virginia 23451 [email protected]
/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) 305-042 Fax: (202) 305-0506
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EXHIBIT A
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HOFI~IMER/FERREBEE, P.C.
ATTORNEYS AND COUNSELORS AT LAW 1060 LASKIN ROAD, SUITE 12B SANDPIPER KEY VIRGINIA BEACH, VIRGINIA 23451-6365 MARY ELIZABETH DAVIS JACK E. FERREBEE SHEERA 1L HERRELL CHARLES IL HOFHEIMER KRISTEN D. HOFHEIMER JEFFREY D. TARKINGTON TELEPHONE (757) 425-5200 FACSIMILE (757) 425-6100 E-mail: jferrebee@hoflaw, corn Our File No. 034233
September 21, 2005 SENT VIA EMAIL AND FIRST CLASS MAIL Steven D. Bryant, Esquire Environmental & Natural Resources Division P.O. Box 663 Washington, DC 20044-0663 RE: Dear Steve: I am writing in response to your letter dated September 13, 2005. As early as August 9, 2005, I informed you that we were having difficulty contacting Mr. Edelstein. I also mentioned that fact several times thereafter. On September 6th, we provided the Navy with a list of eleven willing cluster 4 plaintiffs who agreed to represent that group. Defendant's complete rejection of the residents on that list is inexplicable. If you would like to give us a list of a dozen cluster 4 properties of your choosing whom you wish us to canvas we will do so promptly, but the Navy's demand that we contact all 88 property owners in cluster 4 is unreasonable and intended to create further unnecessary delay in this proceeding. In your letter you assert that Theodore Dingle's property did not meet the criteria agreed upon by the parties and thus the selection criteria is somehow no longer valid for this selection. Plaintiffs' understanding of the selection criteria agreement, was to streamline the appraisal process for experts on both sides of this matter. Mr. Dingle's repairs and rental history were not brought to my attention until discovery had already begun. Regardless, should the government request now to eliminate the Dingle property and proceed with ten test case properties, a removal that would eliminate any further delay in the schedule, I would be willing to discuss the removal with plaintiffs' counsel. We do not agree to put off the expert witness reports beyond the date presently on the schedule. All of the appraisals, save for the Cluster 4 Plaintiff, are undoubtedly finished Testwuide, et al. v. United States
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and can certainly be produced on September 30. There is absolutely no argument concerning the other experts that can be sensibly made. We do not agree to ask the Court to reevaluate the schedule in a phone call. If the Navy wishes both to reject our list of candidates, and declines our offer to call a reasonable list of no more than a dozen residents provided by the Defendant, then any change in the schedule or other relief will have to be done by motion to which we will respond. Should the government choose to name up to a dozen properties in Cluster 4 for us to canvas, please do so by close of business Friday, September 23rd, in order to give us an opportunity to contact these individuals over the weekend, when they are more likely to be home from work. I remain hopeful that a comprornise can be reached on this issue, and I look forward to hearing from you at your earliest convenience.
~ck E. Ferrebee
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EXHIBIT B
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HOFHEIMER/FERREBEE, P.C.
ATTOI~EYS AND COUNSELDRS AT LAW 1060 LASKIN ROAD, SUITE 12B SANDPIPER KEY VIRGIFNIA BEACH, VIRGINIA 23451-6365 MARY ELIZABETH DAVIS JACK E. FERREBEE SHEERA R. HERRELL CHARLES 1L HOFHEIMER KRISTEN D. HOFHEIMER JEFFREY D. TARKINGTON TELEPHONE (757) 425-5200 FACSIMILE (757) 425-6100 E-mail: jferrebee@hoflaw, corn Our File No.
September 1, 2005 VIA EMAIL Steven Bryant, Esquire Department of Justice Environmental & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663
Re"
Testwuide, et al. v. U.S. Cluster 4 Test Case Plaintiff
Dear Steve: I am writing in response to your email dated August 29, 2005 concerning a replacement plaintiff for Mr. Edelstein. You correctly noted that your previous three selections for cluster 4 have been unable or unwilling to participate in the test case. You have asked that we contact the eighty-eight people you have identified to be located in cluster 4. As you remember, not only does the property owner need to be able and willing to participate in the test ,case, but the property is supposed to meet previously agreed conditions, which are: that it be a single family dwelling; that it be owner occupied; and that there have not been any major renovations since 1998. We have undertaken to contact several cluster 4 plaintiffs at random to confirm their willingness to participate as test case plaintiffs and who currently meet the above criteria. In making calls, we found that several telephone numbers had been disconnected, some have failed to return calls, some were "no answer," some live in townhouses, and some have had major renovations since 1998. Two property owners asked that we dismiss them from the claim and we are going to undertake to do so. I propose that you select one from the list below, who are all willing and able to participate and also satisfy our agreed criteria.
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If we are unable to name a replacement plaintiff for cluster 4 exercising a selection ~om this list, I suggest that we schedule a hearing with Judge Wolski as soon as possible in order to resolve the matter. The available plaintiffs and their addresses are:
,
Lynnwood and Marguerite Dickerson 317 Apasus Trail William and Mary Gilbert 925 Earl of Chatham Lane (they had work done in 2002 on soffits, gutters, windows and driveway, but does not appear to constitute major renovations) (this property on the line between clusters 3 and 4) Robert and Bertha Goodwin 909 Pillow Drive
2~
3
o
David and Jeanne Johnson 2305 Southern Points Court (on line between clusters 3 and 4) Randy and Cathy Keel 2424 Sedgwick Drive (on line between clusters 3 and 4) Jeffrey McCreary 804 Lord Leighton Driwe Charles and Patricia Nash 2617 Boush Quarter Michael and Theresa Oswald 2249 North Wolfsnare [)rive (on line between clusters 3 and 4) Louis and Mary Soscia 2617 Sandy Valley Road Volker and Young Steil 913 Earl of Essex Arch Gregory and Delores Wqaitley 2209 Lord Seaton Circle
°
.
.
o
.
10.
11.
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I look forward to hearing fxom you at your earliest convenience. Very truly yours,
Jack E. Ferrebee jef/fej
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EXHIBIT C
Case 1:01-cv-00201-VJW Bryant, Steven tENRDI
From: Sent: To: Cc: Subject: Jack,
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Bryant, Steven (ENRD) Thursday, March 17, 2005 4:43 PM [email protected] [email protected]; [email protected]; Acock, Kelle (ENRD); '[email protected]'; '[email protected]; [email protected]; '[email protected] Replacement Cluster 4
We have selected Kevin and Eugenia Cohen, 647 Alberthas Drive to replace Gerald and Wilma Fox in the test case. Regards, Steve Bryant Trial Attorney Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington D.C. 20044-0663 (v) 202-305-0424 (f) 202-305-0506 This e-mail (including any attachments) is intended for the use of the individual or entity to which it is addressed, tt may contain information that is privileged, confidential or otherwise protected by applicable law. If the reader of this e-mail is not the intended recipient or the employee or agent responsible for delivering the e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you have received this e-mail in error, please notify us immediately by replying to this message, and please destroy all copies of this e-mail.
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EXHIBIT D
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>> I'll have to ask Virginia Beach if they can meet that deadline
>>
>> Kieron
>> >> >>
>> At 10:46 AM 4/6/2005, you wrote:: >> >Kieron,
>>
>> >I accepted your changes, but added that you would provide the >> information >> >by April 12, 2005:
>>
>> >> >> >> >> >> >> >>
>>
>Plaintiffs' counsel further agree to request that the Plaintiffs listed in >Paragraph B provide their best recollection of the names and contact >information of persons and entities that may have these documents, unless >previously identified in Plaintiffs' discovery responses, and to transmit >that information to Counsel for the defense by APRIL 12, 2005.
>> >If you agree then I'll file it this morning. Please advise. >> >> >Thanks,
>>
>> >Steve
>> >> >>
>> >> >> >> >>
>> >>
> ..... Original Message ..... >From: [email protected] [mailto:[email protected]] >Sent: Friday, April 01, 2005 11:26 AM >To: Bryant, Steven (ENRD) >Subject: Stip and Order dealing with Real Estate Transactions
>> >Steve
>>
>> >> >> >> >> >> >> >> >>
>>
>Attached is the stipulation regarding DOJ's contacting various players in >the real estate transactions involving the Test case plaintiffs we >discussed yesterday. Can you take charge of getting it filed? Jaek!s >office is still trying to contact the Cohens and is also contacting the >remaining test case Plaintiffs to get recollections of lenders, brokers, >closing agents, etc. where the produced documents do not already reveal >that information.
>> >Kieron
>> >>
>> >> >> >> >> >> >> >> >>
>> >>
>Kieron Quinn 410 >825 2300 >Quinn, Gordon & Wolf Chtd. 0066 >40 West Chesapeake >Ave. >Suite 408 >Baltimore, MD 21204
Tel.
Fax. 410 825
Em [email protected] www.quinnlaw.com
>> Kieron Quinn >> 410 >> 825 2300
Tel.
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EXHIBIT E
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Bryant, Steven IENRD! From: Sent:
To:
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¯ Cc: Subject: Attachments:
Bryant, Steven (ENRD) Thursday, Apdl 07, 2005 4:50 PM '[email protected]' Acock, Kelle (ENRD); [email protected]; ([email protected]); [email protected]; '[email protected]'; Marty Wolf ([email protected]); ([email protected]); ([email protected]) Oceana Discovery tmp.htm
tmp.htm (S KB) Hi Jack, A few questions and follow up info on some of the outstanding discovery matters: The depos on April 25-26 will be at Naval Station Norfolk, 153'0 Gilbert Street, Suite 2133, Building N-26, Norfolk, VA, 23511-2722. As a reminder, Fred Pierson and Capt Keeley will be available on the 25th between 9:30 and 4:00 PM. We would prefer to have Capt Keeley's deposition first because of his schedule. As you know, RADM Turcotte is available from 12:30 to 3:30PM on the 26th. Please advise if you want to conduct Capt (Ret) Zobel's deposition in the morning or afternoon so I can let him know. You were going to send me a list of[ proposed nonworking spouses for a couple of the witnesses I advised that I wanted to depose on the 27-28th. Please also let me know which plaintiffs will be available for which day. I will notice the depositions once I receive that information. Have you had any resolution on whether the Cohens want to remain in the suit? Please also provide their phone number so I can pass it along to Mike Germano for an inspection. Please also provide Mr. Dingle's ex-wife's name, address, and phone number. I am ready to file the stipulation regarding the waiver/release of information, but I added a provision that you could get me the information (names of lenders, appraisers, agents, closing/settlement companies or lawyers, etc...) to the best of plaintiffs' (that have not provided all of the information and documentation) recollections by April 12. Please confirm and I will file it. Thank you, Steve
Tracking:
Recipient '[email protected]' Acock, Kelle (ENRD) [email protected] ([email protected]) [email protected] 'kfquin n@quin nlaw.corn' Marty Wolf ([email protected]) ([email protected])
Delivery Delivered: 4/7/2005 4:50 PM
Read Read: 4/-712005 4:57 PM
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EXHIBIT F
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Bryant, Steven tENRD! From: Sent:
To: Subject:
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[email protected] Thursday, April 14, 2005 8:21 AM Bryant, Steven (ENRD) Cohens
Steve: Apparently you did not receive my email regarding the Cohens. Because we had not received a response from the Cohens, I drove to their house on Monday. Mr. Cohen explained that his wife died recently and that he is juggling a busy construction job with raising an active five year old son. Although he wants to remain in the case, he is not in a position right now to participate in the test case. Will you make another selection or consider proceeding with the test case plaintiffs we have on board right now? I will get back to you shortly on your selection of plaintiffs for depositions.
Jack Ferrebee
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EXHIBIT G
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Acock, Kelle tENRDt From: Sent:
To: Cc:
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Subject:
Jack,
Bryant, Steven (ENRD) Thursday, April 14, 2005 8:54 AM '[email protected]' Acock, Kelle (ENRD) Re: Cohens
That is tragic news, especially for the son. If I may ask, when did Mrs. Cohen pass away? Regards, Steve
Sent from my BlackBerry Wireless Handheld Sent Using U.S. DOJ/ENRD BES Server ..... Original Message ..... From: [email protected]
Jack Ferrebee
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EXHIBIT H
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B~ant, Steven IENRD1 From: Sent:
To:
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Subject:
Steve,
[email protected] Thursday, May 12, 2005 3:18 PM Bryant, Steven (ENRD) Eugenia Cohen
My father asked me to forward you some supplemental information on the Cohens.We have learned that Ms. Cohen died on September ii, 2003. Tom Thomas B. Ferrebee Case Administrator Jet Noise Litigation Group 1060 Laskin Road, Suite 12B Virginia Beach, Virginia 23451 757-333-8110 757-425-6100 fax
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EXHIBIT I
Case 1:01-cv-00201-VJW B~ant, Steven IENRDt From:
Sent: To: Cc:
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Bryant, Steven (ENRD)
Monday, May 16, 2005 12:08 PM '[email protected]' '[email protected]'; 'Marty Wolf ([email protected])'; ' ([email protected])'; ' ([email protected])'; '[email protected]'; '[email protected]'; '[email protected]'; '[email protected]'; '[email protected]'; '[email protected]'; Acock, Kelle (ENRD); Plater, Tawanda (ENRD) Outstanding Discovery Issues SFX2F.pdf
Subject: Attachments:
S~2F.p~(153KB) Jack, I sent the attached April 29, 2005 letter more than two weeks ago, but have not heard back from you regarding the rather lengthy list of discovery issues raised. We need all of the information discussed in the letter, and it is long overdue. Not having the documents compromises our ability to thoroughly depose the witnesses. Particularly troubling is the indication from the plaintiffs previously deposed that they have files containing the records associated with their real estate transactions, yet we have not received a single complete contract from any one of those plaintiffs, as well as several other plaintiffs that we will be deposing June 8-10th. In our Notice of Deposition we requested that the deponents bring these materials with them, but the deponents brought no records with them. The lone exception was the date of Mrs. Cohen's passing. Thank you for passing along that information last week. In light of the fact that her death was approximately a year and eight months ago we cannot agree to remove Mr. Cohen as a test plaintiff. At this point he should no longer be dealing with any probate issues or other time consuming matters related to her death. Of course we are sympathetic regarding his loss, and will be flexible in terms of scheduling his deposition. Nevertheless, his time commitment to the case is rather minimal - a deposition, producing documents, responding to interrogatories, and trial testimony. Additionally, he is a plaintiff from Whitley v. US, which was filed approximately a year after Mrs. Cohen passed away. Presumably, he was informed that he would be named as a plaintiff in the Whitley complaint prior to its filing, and thereby realized that he may have to participate in it. Additonally, Betty Capps indicated during her deposition that she videotaped and/or photographed military aircraft in the proximity of her home and also has photographs of F-14 Tomcat aircraft taken a few years ago. In accordance with Defendant's previous discovery requests and my request at her deposition, please provide this information by supplementing your response to Interrogatory Nos. 9 and i0 and Defendant's RFP Nos. 1-3. I would prefer to work this out between us rather than getting the judge involved, but I cannot do that without a commitment concerning when you will produce the requested information. Please let me know if a conference call would be helpful and I will be glad to participate. Thank you in advance, Steve
..... Original Message ..... From: Bryant, Steven (ENRD) Sent: Friday, April 29, 2005 5:34 PM To: '[email protected]' Cc: Acock, Kelle (ENRD); Marty Wolf ([email protected]); '[email protected]';
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[email protected]; [email protected]; [email protected]; '[email protected]'; 'kfquinn@quinnlaw°com'; ([email protected]); ([email protected]); [email protected]; Bryant, Steven (ENRD); Alderson, Thomas (ENRD) Subject: April 15 letter
Jack, Attached responds to your April 15th letter. Please let me know if you would like to discuss any of these issues in a conference call. If so, I will be available Tuesday morning. Enjoy the weekend. Steve
..... Original Message ..... From: ECOPY (ENRD) Sent: Friday, April 29, 2005 5:28 PM To: Bryant, Steven (ENRD) Subject: Scanned document <2 pages ~149 KB> -- 4/29/2005 5:27:10 PM
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Recipient '[email protected]' 'kfquinn@quinnlaw,com' 'Marty Wolf ([email protected])' ' (sswain@srgstawocom)' ' (tsh [email protected])' '[email protected]' 'chofheimer@ hoflaw.corn' '[email protected]' '[email protected] '[email protected]' '[email protected]' Acock, Kelle (ENRD) Plater, Tawanda (ENRD)
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Delivered: 5/16/2005 12:09 PM Delivered: 5/16/2005 12:09 PM
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EXHIBIT J
Case 1:01-cv-00201-VJW
Bryant, Steven IENRD1
From:
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Sent:
To:
Cc:
Subject:
Jack,
Bryant, Steven (ENRD) Monday, June 27, 2005 7:08 PM '[email protected]'; '[email protected]'; Marty Wolf ([email protected]); [email protected]; [email protected]; ([email protected]); 'S Swain ([email protected])' Acock, Kelle (ENRD); '[email protected]'; [email protected]; [email protected]; '[email protected]'; Bryant, Steven (ENRD); Miller, Lynn (ENRD) June 24, 2005 Letter (Discovery)
You have misinterpreted the intent of interrogatory No. 19 and my follow-up letter. Reviewing the test plaintiffs' military records is in no way "calculated to chill" or "intimidat[e]" them. Quite frankly, I am not sure how it ever could. Nevertheless, I provided an example in my letter of how that information (assignments/duty positions) is relevant to the case. I do not recall any objections during the depositions when the veteran plaintiffs were asked to recount their military assignments and duty positions, and what, if any, exposure they may have had to aircraft noise. The military records are useful for verifying that information and filling in any gaps. Memories fade over time, particularly when one considers the transient nature of military service. The portions of the interrogatory dealing with character of discharge, rank, disciplinary matters, and courts-martial are designed to elicit information potentially related to bias and credibility. There may be other military records that are relevant as well. As a reminder, the Court specifically granted the protective order because they were not relevant to the issue of class certification. Messrs. Testwuide, Bunn, and Lyle were not being called as witnesses on the merits at the time. The Court, in fact, invited the government to renew the request to access military records should circumstances change, which has occurred. Please advise what specifically about the test plaintiffs' military records that has you so concerned. Perhaps we can reach a compromise as to those portions of the military records. As to Interrogatory No. 20, the test plaintiffs have alleged in discovery that the F/A-18 overflights are (and have been) intolerable. In light of that assertion it is perfectly reasonably to explore why they have not moved. As I indicated in the letter, the first part of the interrogatory ask the plaintiff to list the reasons why they have not moved. You have refused to have the test plaintiffs list those reasons. Please state your specific objection to this part of the interrogatory. The second portion of Interrogatory No. 20 is relevant for those test plaintiffs who claim that moving would be a financial hardship or they could not afford to move. Assets and liabilities are relevant to determine if that assertion is credibile. I look forward to reviewing the privilege log. Thank you for the update. As to Mr. Cohen's refusal to participate in the test case, please advise what exactly is the imposition that makes having him as a test plaintiff so objectionable. As I have repeatedly stated, we are more than willing to be flexible in scheduling his deposition at a time that is convenient for him. Without additonal information, the only appropriate course of action for the government is to move to dismiss him for failure to prosecute. Thank you, Steve .....Original Message ..... From: [email protected] [mailto:[email protected]] Sent: Friday, June 24, 2005 5:33 PM To: Bryant, Steven (ENRD) ; [email protected] Cc: Miller, Lynn (ENRD); Acock, Kelle (ENRD) ; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 1
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[email protected]; [email protected]; [email protected]; [email protected]; [email protected] Subject: RE: June 24, 2005 Letter (Discovery)
Steve: Mr. Cohen is not going to participate as a test case plaintiff. You should consider naming another plaintiff from his cluster if you intend to do so. We presently intend to argue for his continued participation in the litigation. We have been working on the privilege log and expect to have it completed shortly. I cannot give you an exact date when it will be completed, but we hope to have it completed within the next several days. I will review the transcript with respect to the prior court ruling on your request for all of our clients' military records. It is and has been our position that the sole reason for such a request is the intimidation of our military or veteran clients. If your question is how much contact and experience our clients have with the operations of military aircraft, whether in their homes or through their work, the question would naturally apply to lifelong civilians as well as active duty, reserve or veteran plaintiffs. I think that the interrogatory was calculated more to chill our veteran plaintiffs than it was to shed any useful light on a takings case. I will talk to our other counsel about reaching some sort of a compromise on interrogatory 19, but I doubt that we will be able to agree to a wholesale rummaging of our clients' military records without a reaonable basis for doing so. As I remember it, Julia Evans previously threatened to obtain the military records of o! ur client With respect to interrogatory 20, I will confer with my co-counsel, but from my perspective the net financial worth of the test case plaintiffs has nothing to do with whether an avigation easement exists over their homes. As far as I have been able to discern, an avigation easement exists for reasons entirely independent of a person's net worth. Whether any individual feels that he or she can afford to move or has to move to escape the jet noise, the answer doesn't appear to me to have anything to do with the existence of an avigation easement. I will let you know if there is any room or a basis for a compromise on this interrogatory, but I presently cannot accept that the information is relevant or that it is calculated to lead to admissible evidence in this proceeding. Jack Ferrebee
--- Original Message--To: "[email protected]"
>>
>> Attached is a letter primarily ,discussing discovery-related issues.
>>
Case 1:01-cv-00201-VJW
>> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> >> Regards, Steve
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Steve Bryant Trial Attorney Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington D.C. 20044-0663 (v) 202-305-0424 (f) 202-305-0506 This e-mail (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If the reader of this e-mail is not the intended recipient or the employee or agent responsible for delivering the e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-mail or its contents is strictly prohibited. If you have received this e-mail in error, please notify us immediately by replying to this message, and please destroy all copies of this e-mail.
<<#302343-vl-Oceana - Letter-June 24 2005_(Discovery_Issues) .PDF>>
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EXHIBIT K
Case 1:01-cv-00201-VJW
Bryant, Steven IENRDI From: Sent: To: Cc: Subject: Jack,
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Bryant, Steven (ENRD) Friday, July 22, 20[)5 1:35 PM '[email protected]' Bryant, Steven (ENRD) FW: Phone call w/Jack
Just wanted to confirm what we discussed yesterday. You informed me that you are withdrawing Ernest Ball from your witness list (and he will not testify at trial), and I agreed not to depose him. I advised that we are adding Scott Edelstein as the replacement test plaintiff for Mr. Cohen. (Although we did not discuss it yesterday, please recall from earlier conversations and e-mails that we will move to ,dismiss Mr. Cohen for refusing to participate in the case.) You agreed that I did not need to send out of notices of deposition and you would ensure that the deponents would attend their depositions on time: Stokeley and Schick at your office starlLing at 9:30AM on Monday, and Mrs. Van Nostrand and Mrs. Ryan at Steve Swain's office on Wednesday starting at 9AM You also advised that Ms. Dingle would be available to be deposed on August 2nd, the same day that Tom Askins will be deposed. I also informed you that Mike Germano has unfortunately contracted Lyme Disease, which has seriously impacted his health. I suggested that we alter the schedule to accommodate Mike's health concerns, as well as the addition of Mr. Edelstein to the test case. I recommended delaying the due date for expert reports from Aug 12 to the last week in September, and a corresponding delay in the remainder of the schedule due dates. You were receptive to delaying the schedule, but wanted to confer with your co-counsel before commiting, and would let me know on Monday. As I mentioned, Mike is confident that he can complete his work in time if we adjust the schedule. Nevertheless, as you know, there is no definitive recovery period for Lyme Disease so I will monitor his recovery over the next month and let you know if there is problem meeting that deadline (assuming your cocounsel agree to alter the schedule). We also discussed the possibility of adding a period in the schedule for the experts to prepare supplemental reports in rebuttal to the initial reports prepared by opposing experts. Since we have had a few proposed test plaintiffs who did not want to participate in the test case (Foxes/Cohen), please advise by July 29th if Mr. Edelstein is willing to participate. Please also let me know how long you will need for him to provide his discovery responses so we can decide whether that may impact the schedule as well. Thank you, Steve Bryant Trial Attorney Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington D.C. 20044-0663 (v) 202-305-0424 (f) 202-305-0506 This e-mail (including any attachments) is intended for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected by applicable law. If the reader of this e-mail is not the intended recipient or the employee or agent responsible for delivering the e-mail to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this e-marl or its contents is stnctly prohibited. /f you have received this e-mail in error, please notify us immediately by replying to this message, and please destroy all copies of this e-mail.
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