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

Case 1:01-cv-00201-VJW

Document 120

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CAROLE and ROBERT TESTWUIDE
et. aI.,

Plaintiffs
No. 01- 201

L

Judge Wolski
THE UNITED STATES,

Defendant.

UNITED STATES' MOTION TO COMPEL PRODUCTION OF DISCOVERY RESPONSES CONCERNING MILITARY RECORDS
The United States , through its undersigned counsel , hereby moves to compel

production by plaintiffs of responses to Interrogatory number 19 propounded on May 12
2005 concerning military records.

Plaintiffs have refused to provide a complete response

to Interrogatory number 19 relying on a February 6 2002 protective order denying the

United States access to the Navy s service records of plaintiffs Robert Testwide , James
Lyles , and George Bunn. That interrogatory requests that test plaintiffs indicate whether

they have served in the United States Military, and if so , to provide information and
documentation related to their service. ! However
, as explained

infra the 2002 protective

order was issued in the context of the then-pending motion for class certification. Class
certification subsequently was denied on June 17
1 The
2003.

Testwide v. United States , 56

inonntion sought includes: 1) branch of service; dates , locations , of assignents and duty positions; 3) rank and character of discharge; 4) and convictions under the Unifonn Code of Military Justice whether though

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Fed. Cl. 755 (June 17 2003) (Bush , J. ).

Further ,

the prior order applied only to these

three individuals , who were at the time putative class representatives. The current

discovery request is unrelated to those individuals. The protective order invited the
United States to renew its request for these service records at a later date if it could be

demonstrated that the records were reasonably calculated to lead to the discovery of
admissible evidence.

Because plaintiffs ' motion for class certification was denied and the case is now
proceeding on the merits , the rationale underlying the protective order no longer applies

and a review of the test plaintiffs ' military records is reasonably calculated to lead to the

discovery of admissible evidence. Specifically, the records bear on the test plaintiffs
exposure to jet noise during their military service , as well as their credibility.

The United States , therefore , moves the Court to order the test plaintiffs to respond to
defendant' s Interrogatory number 19. Should the Court agree that defendant is entitled

obtain discovery of these records , the United States intends to retreve the test plaintiffs

service records maintained by the National Archives at the National Records Center
Military Personnel Records in St. Louis , Missouri and the Departent of the Navy. The

United States does not intend to review the test plaintiffs ' fitness reports and evaluations

which are maintained

in a separate section of each service record.

If this motion is

granted , the United States wil

take appropriate steps

to ensure that this portion of each
In addition , the United States wil

record is segregated from the remainder of the record.

nonjudicial punshment or cour-martial.

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not disclose the contents of the service records outside of this litigation.
The parties attempted to resolve this discovery dispute; however , these efforts

proved unsuccessful and additional "meet and confer" sessions would be futile.

INTRODUCTION
Plaintiffs filed the instant case on April 5 , 2001 and moved to have it certified as a

class action with Testwide , Bunn , and Lyle as three of the class representatives. The
United States opposed class certification , which lead to discovery, briefing, and the
determination that plaintiffs ' claims should be resolved individually rather than as a class
action.

See Testwide v. United States , 56 Fed. Cl. 755 (June 17 2003) (Bush , 1.).

During the phase of the litigation that focused on class certification , defendant sought to
review the military records of Testwide , Bunn , and Lyle , all of whom had previously

served in the United States Navy. Plaintiffs opposed and moved for a protective order to
prevent defendant from accessing the Navy records related to the three named plaintiffs
who were military veterans.

At a Rule 16 hearing the Court granted plaintiffs ' motion for a protective order

preventing defendant from accessing Testwide , Bunn , and Lyle s military records. The
Court summarized plaintiffs ' contention that military service records were irrelevant to
class certification

2 Plaintiffs also raised Privacy Act concerns with respect to the Navy records. As more fully discussed in the earlier
briefmg opposing the protective order , these assertions were without merit because the review of military service records by the Departent of Justice for puroses of defending the Departent of Defense (" DoD" ) is an authorized routine use under the DoD regulation implementing the Privacy Act. See , 51 Fed. Reg. 18086 at 18087 (May 16 1986). The Cour did not rely on the Privacy Act in granting the protective order. R. at 15 (Ex. A).

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Plaintiffs adequacy as class representatives would be determined solely on their status as residential propert owners and ... there was no connection between personnel records and the question of adequacy and tyicality of class representatives.

R. at 15 (Ex. A). Judge Bush agreed with plaintiffs and explicitly predicated its ruling on
the lack of a connection between the military records and the issue of class certification:
(A)t this point , I wil grant plaintiffs ' motion for protective order precluding the defendant from accessing plaintiffs ' personnel records because I do not see the relevance of these records to the issue of class certification at this time.
. The Court ,

however , further advised that defendant was free to renew its request if

the information became relevant and could lead to admissible evidence.

The protective order is limited to the three named plaintiffs with military service

who were offered as class representatives - Testwide , Bunn , and Lyle. By its terms the protective order does not apply to other plaintiffs in the case , in particular the current test
plaintiffs. Plaintiffs

, however, have relied on the protective order in refusing to answer

defendant' s Interrogatory Number. 19 regarding the test plaintiffs ' military service and in

declining to turn over military records in the test plaintiffs
to Def. s Interrog. No. 19 (Ex. B).

' possession.

See , PIs. ' Resp.

ARGUMENT
Now that the case is proceeding on the merits and class certification is no longer
an issue ,

the test plaintiffs ' military records have become relevant and could lead to

admissible evidence. This is especially tre

in light of the liberal discovery standards and

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broad interpretation of relevancy in the context of discovery.

Katz v. Batavia Marine &
424 (Fed. Cir. 1993).

Sporting Supplies . Inc. , 984 F. 2d 422

See

also

Estee Lauder. Inc.

v. The Fragrance Counter . Inc. , 189 F. D. 269 274 (S.

Y. 1999) (" discovery rules

are to be given a broad and liberal constrction to effectuate their purpose of ensuring that

civil trals are not conducted in the dark"

Relevancy for discovery is flexible; it should

be broadly constred to encompass ''' any matter that bears on , or that reasonably could
lead to other matters that could bear on , or any issue that is or may be in the case
White v. Kenneth Warren & Son , 203 F. D. 364 , 365 (N. D. Ill. 2001) (quoting
Oppenheimer Fund. Inc v. Sanders , 437 U. S. 340 (1978)).

Defendant has learned through depositions that at least four of the test plaintiffs
-Theodore Dingle , Kenneth Hil , Michael Leary, and Sean Ryan- have served in the

United States Navy. Dingle , Leary, and Hil
after 20 to 30 years of service.

indicated

that they retired from the Navy

See , Dingle Depo. at 20 (Ex. C); Leary Depo. at 5 (Ex.

D); Hil Depo. at 5 (Ex. E). Ryan testified that he served for three years on active duty
and two years in the Reserves. Ryan Depo. at 10- 11 (Ex. F). Their assignments and duty

positions , which are documented in their military records , are relevant to assessing their

exposure to and knowledge of Naval aircraft operations. The plaintiffs ' previous
exposure to jet operations wil assist in evaluating plaintiffs ' claims that F/A- 18 CD
operations have substantially interfered with the use and enjoyment of their propert. It is

noteworthy that plaintiffs ' counsel did not object when Dingle , Hil , Leary, and Ryan

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were questioned during their depositions about their various Navy assignments and duty
positions. Moreover , memories fade over time , particularly considering the transient
nature of military service. The military service records

wil be useful for verifying the

information provided in the depositions , as well as filling in gaps in their memories which
were made evident during the depositions.
Additionally, the test plaintiffs ' military service records may contain information

pertaining to their credibility as witnesses. The records include documentation regarding
disciplinary matters and whether they were prosecuted in courts-martial. Reviewing the

test plaintiffs ' military records

wil allow the United

States to evaluate the nature of any
credibility at tral.

offenses and whether they are relevant to the witnesses '

The records

may reveal that there is evidence admissible under Federal Rules of Evidence 404 607

609. The records wil also reveal if there were any offenses that were not disclosed in the
depositions , or any other potentially admissible evidence not yet disclosed by plaintiffs.

As a practical matter the United States can not state with particularity all the

possible relevant information that may be found in the test plaintiffs ' military records

without having the opportnity to review

the documents.

Blout v. Wake Electrc

Membership Corporation , 162 F. R.D. 102 , 105

(B.D.

C. 1993) ("personnel files possess

an inherent reliability which cannot now be duplicated through any other source
especially through depositions.

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CONCLUSION
The protective order was predicated on lack of relevance between the plaintiffs

military service records and the issue of class certification. As class certification was
denied and the case is now proceeding on the merits , the test plaintiffs ' military records

are relevant to both their allegations and to their credibility as witnesses. Accordingly,
the Court should conclude that the protective order does not serve to bar discovery of the

military service records of the test plaintiffs. Defendant , therefore , respectfully request
that this Court order plaintiffs to fully respond to Interrogatory number 19 and to produce
the requested military records in their possession.

Dated this 16th day of August 2005.

Respectfully Submitted

Steven D. Bryant STEVEND. BRYANT KELLE S. ACOCK United States Departent of Justice Environment and Natural Resources Division Natural Resources Section O. Box 663 Washington , DC 20044- 0663 Email: steven. bryant usdoj . gov Voice: (202) 305- 0424 Fax: (202) 305- 0506
Isl

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CERTIFICATE OF SERVICE
United States ' Motion to Compel
Miltary Records

I hereby certify that a copy of the foregoing

Production of Discovery Responses Concerning
to the paries listed below on 16 August 2005.

was served electronically

Jack Ferrebee Hoffheimer/Ferrebee , PC 1060 Laskin Road , Suite 12Virginia Beach , VA 23451

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EXHIBIT A

;i:i;i '.i, ::.i'; i

C';-;cl

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THE

UNITED

STATES

COURT

FEDERA

CLAIMS

CAROL & ROBERT TESTWUIDE, )

Plaintiffs,
No. :
THE UNITED STATES,

01- 201L

Defendant.
Courtroom 5 National Courts Building 717 Madison Place, N.

Washington, D. C .
Wednesday,

February 6, 2002

The parties met, pursuant to the Notice of the
Court, at 11:

05 a. m .
HONORALE LYN J. BUSH

BEFORE:

Judge

APPEARCES:
" ..:,.1;;

For the Plaintiff:
KIERON F. QUINN, Esquire MATIN F. WOLF, Esquire Quinn, Gordon & Wolf, LLP 40 West Chesapeake Avenue Suite 408 Baltimore, Maryland 21204- 4803
(410) 825- 2300

For the Defendant:

JULIA KINGSLEY EVANS, Esquire U. S. Department of Justice

601 D Street, N. W .

Washington, D. (202) 514- 4485

C. 20004

.:1 Heritage Reporting Corporation
(202) 628- 4888

V! -----

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Well, we don t have documents that support

standing there watching aircraft fly over your house.

did identify that the Navy has flight tract

information.

And we believe they probably have air traffic control

information that would show exactly where the planes

fly.
're

But . we don t have air traffic control facilities.
just homeowners.

So we don t have documents that support a lot

the things they
i: "

ve asked for.

As it turns out, between the

Navy s own documents and between the documents that we gave
jkI;i;

them, we ve responded.
to their requests.
THE COURT:

They are the documents that respond

Thank you.

On December the

20th,
In that

plaintiffs filed a motion for a protective order.

request, they asked

the' Court to issue a protective order,

barring the government from obtaining plaintiffs' civilian
and/or military service records, which they contend were

irrelevant to the issue of class certification in this
, 1

case.

Defendant filed an opposition to plaintiffs ' motion for a

protective order on January

2nd.
The

Defendant states that it wants the Navy records of

Robert Testwuide, James Lyle, and George Bunn.

declarations of those three individuals state that they had

Navy seryice.

And defendant states that there may be

information that plaintiffs had knowledge related to

Heritage Reporting Corporation
(202) 628- 4888

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aircraft operations at Oceana or, perhaps

or that

plaintiffs may have a history of filing meritless
complaints

Plaintiffs then filed a reply in support of

their request for a protective order on January

11th.

Therein, they stated that plaintiffs' adequacy as
class representatives would be determined solely on their
status as residential property owners and depositions that

there was no connection between personnel records and the

10

question of adequacy and typical i ty of class representatives. And then they also cited privacy''' act
concerns.
I have considered the briefings on both of those
-- on that particular set of motions.

And, at this point, I

will grant plaintiffs' motion for protective

order,

precluding the defendant from accessing plaintiffs
personnel records, because I do not see the relevance of
these records to the issue of class certification at this

time.
However, I do not preclude defendant from renewing
its request sometime in the future if further evidence becomes available to solidly demonstrate that this
information is relevant and could lead to admissible

evidence.
Now

, I' m

going to move forward to the fifth

set,

which is plaintiffs ' motion to compel the production of

Heritage Reporting Corporation (202) 628-4888

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EXHIBIT B

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IN

THE UNITED STATES COURT OF FEDERAL CLAIMS

CAROL AND ROBERT TESTWIDE , et. aI.
Plaintiffs
No. : OI- 20IL Judge Victor J. Wolski

THE UNTED STATES OF

RICA
Defendant.

PLAINTIFFS' RESPONSES TO DEFENDAN' S SECOND INERROGATORIES

COME NOW the Plaintiffs , and in their responses to Defendant' s First Set of

Interrogatories , states as follows:
INTRODUCTORY STATEMENT AN GENERA OBJECTIONS of Plaintiffs in the presently pending test case

These answers represent the effort

to respond to Defendant' s written discovery based on the investigation which Plaintiffs

counsel have thus far been able to carr

out

in connection with the facts relative to this

litigation. Unless otherwise stated or suggested " Plaintiffs " refers to those twelve
identified properties.

There may exist fuher information responsive to discovery that is not within
Plaintiffs' present knowledge or reasonably available to Plaintiffs. There exist documents
relating to the subject matter of Defendats ' discovery, which Plaintiffs have not yet been

given access to , identified, or reviewed, despite their best efforts to do so. There are
certinly persons with

knowledge relating to the subject matter of Defendant' s discovery

of whom Plaintiffs are not presently aware. Accordingly, these responses are based upon
those facts and information now known to Plaintiffs as well as Plaintiffs ' counsels

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c. the basis for your claim that jet noise and/or overflights have caused the condition d. when, where , and who diagnosed and/or treated the condition e. Furish any and all medical records associated with diagnosing and/or treating

the condition.
f. Furish all medical records associated with anual examinations for the last 20 years.
check-up

physical

RESPONSE:
Plaintiffs have provided their responses to this interrogatory in each of their
depositions. See also Herbert Van Nostrand'

udiological evaluation dated October 21
Capps does

2003 numbered as document PL103049. Bett

not have in her possession
She

the medical record related to the bleeding in her ears as a result of wearig ear plugs.
is attempting to retreve the record from

health care provider, but wil provide a medical

release , if necessar. The other test case plaintiffs are . not claiming that the noise
involved in ths proceedig caused hearng loss or medical or psychological problems for

which treatment was sought or required.

INTERROGATORY

19-

For each of the test plaintiffs , state whether you have ever served in the United States military (Active Duty or Reserves). If so provide the following: a. the branch of service and dates and location of your previous and curent

assignents
b. duty positions

c. ran when discharged or retired and character of your service as reflected on your Certificate of Release or Discharge From Active Duty . d. whether you ever convicted of any crime under the Unifonn Code of Military Justice , whether through nonjudicial punshment or cour-martial. If so , state the crime( s) and the resulting action. e. Furnish copies of all documents in your. possession relating to your military servIce.

RESPONSE: Plaintiffs object to this interrogatory on the grounds that the court has
previously granted a protective order in the Testwuide case regarding the same

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information. Plaintiffs therefore request that you withdraw this interrogatory without the necessity of formal motion practice.

INTERROGATORY 20For each of the test plaintiffs , explain all ofthe reasons why you have not moved from your residence (the residen al propert that is the subject of this litigation) in the time since the F/A- 18 C/D aircraft were relocated from NAS Cecil Field , Florida to NAS Oceana. If the costs associated with moving and/or purchasing a new home was a factor in your decision to remain in your residence provide the following: a. A list of all your assets and their value , including, but not limited to financial assets (investment accounts , including, but not limited to stocks , bonds mutual fuds retirement accounts (401 K, IR ban accounts), college savings accounts (529 Coverdell), real propert assets other than your principal residence. b. A list of all of your debts (secured or unecured) and to what entities and/or persons the debts are owed,. including, but not limited to all credit cards lines of credit loans (home equity, personal , auto obile , or otherwise), mortgages (other than those you have previously identified in response to previous discovery requests). c. Your anual income from 1999 to the present, including, but not limited to all personal income , investment income , capital gains , and business income alimony and/or child support, gifts (exceeding $1 000), and d. A copy of your federal and state income ta retus from 1999 to-2004.

ineritace.

RESPONSE:

Plaintiffs object to this interrogatory on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admssible evidence. Plaintiffs further object to this interrogatory on the grounds that financial information, including a litigants net worth , is only discoverable when punitive daages
IS an Issue.

ON BEHALF OF TEST CASE PLAINTIFFS

BY:

Isl

Jack E. Ferrebee Jack E. Ferrebee 1060 Laskin Road , Suite 12B Virginia Beach, Virginia 23451 (757) 425- 5200 j ferrebee hoflaw. com

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EXHIBIT C

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CLAIMS IN THE UNITED STATES COURT OF FEDERA

CAROL AND ROBERT TESTWUIDE,

et al.,

ORIGINAL

Plaintiffs,
NO. 01-201L Judge Victor J. Wolski

THE UNITED STATES OF AMRICA,

Defendant.

DEPOSITION UPON ORA EXAMINATION
OF THEODORE

RAKIN DINGLE

TAKEN ON BEHAF OF THE DEFENDANT

Virginia Beach, Virginia
June 8, 2005

Appearances:

By:

SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, STEPHEN c. SWAIN, ESQUIRE Counsel for the Plaintiffs

P. C.

........ _""'TT"n1 'nT:nl"'Dr'T1\Tf:

. I

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through?
7, W2, W3, W4. 3, E- 4, E- 5, E- 6, E-

And when did your military career end?

April 1st of

2004.

So it was roughly 29 years?

I believe that was
30 years and some odd months.

the -- I became a diver in

'75.

I entered the Navy, started

boot camp in January of

'73.

Or '74.

January of

'74.

What locations
What assignments did you have?

throughout your career?
I was -

And the time period

too, please.

' 74 until
I was in Norfolk on a tender from

' 76.

And if I could interject, what is a tender?

A surface tender.

It'

s a ship that repairs other

ships.
NOB.

I was part of a dive team there that was located at

NOB?

Naval operations Base, which is noW NAVSEA

Norfolk noW,

I guess.

Okay.

And then after 1976?

'76 I went to -- I was in training at Indian

Head, Maryland.

I returned to Fort story for a brief --

. 1\

about two years.
I deployed to Sigonella, Sicily for three

years.

:i'

ZAHN COURT REPORTING

(757) 627- 6554

il!

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EXHIBIT D

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IN THE UNITED STATES COURT OF FEDERA CLAIMS

CAROL AND ROBERT TESTWUIDE,

et al.,

Plaintiffs,
NO. 01-201L Judge Victor J. Wolski
THE UNITED STATES OF AMERICA,

Defendant.

DEPOSITION UPON ORAL EXAMINATION

OF MICHAL J. LEARY, TAKEN ON BEHAF OF THE DEFENDANT

Virginia Beach, Virginia

April 28,

2005

Appearances:

By: STEPHEN By:

SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P. C. SWAIN, ESQUIRE . Counsel for the Plaintiffs

U. S. DEPARTMENT OF JUSTICE STEVEN D. BRYANT, ESQUIRE DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

Ii '

\1HD.

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those.
th ing .

Work with curriculum, training guides, that type of

What type of supply?
Naval Supply.

I understand
Is it weaponry?

that.

But I mean is it foodstuffs?

Parts. Parts.
Okay.
And how long have you been doing that?
About three and a half years.

Three and a half years with Serco dr with

Resource Consultants?
Most of it was with Resource Consultants.

Just

the past couple of months Serco was

acquired.

And what did you do before that -- before you
were in this position?
I was a storekeeper in the Navy for 20 years.

Storekeeper.

So you retired from the Navy?

Yes, sir.
What was your rank when you retired?

Senior chief. Senior chief.
Okay.
If you would, go through your assignments

in terms of where you were located with the Navy throughout
the whole course of the 20 years?
n,"TT'lT """TTnm T\pT\AT'mT'tT"

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EXHIBIT E

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IN THE UNITED STATES COURT OF FEDERA CLAIMS

CAROL AND ROBERT TESTWUIDE,

et al.,

Plaintiffs,
NO. 01-201L Judge Victor J. Wolski
THE UNITED STATES OF AMERICA,

Defendant.

DEPOSITION UPON ORA EXAMINATION
OF KENNETH A. HILL

TAKEN ON BEHAF OF THE DEFENDANT

Virginia Beach, Virginia
June 9, 2005

Appearances:
HOFHEIMER / FERREBEE, P. KRISTEN HOFHEIMER, ESQUIRE Counsel for the Plaintiffs

By:

: ORIGINAL
ZAHN COURT REPORTING

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Also, she can t type down what we are both saying at the same time so please don t talk over me and I' ll try

not to do that with
Al so,
:i :17: 10

you.

So just make sure of that.

if you do -- if you don t understand a

question that I

ask,

please say so and I'

ll clarify it at

any time.
And then,

lastly,

if you need a break any time

during this, just say the word and we ll take a few minute

break then.
17:23 10

Just let me know.

Okay?

Okay.
Understand all that?

Yes.

All right.
17:34 15

What is your name and address?

Kenneth A. Hill, 925 Lamplight Lane, Virginia

Beach, Virginia

23452.

And what is your occupation?
m a machinist at Norfolk Naval Shipyard.

And how long have you done that?

Two and a hal f
17:48 20

years.

And what did you do before that?
I was in the Navy for 20 years.
So you retired?

That'

s correct.

Did you go right into that position as a
: 17: 58

machinist after you retired?
i I

ZAHN COURT REPORTING

,I

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EXHIBIT F

_OM

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CLAIMS IN THE UNITED STATES COURT OF FEDERA

CAROL AND ROBERT TESTWUIDE,

et al.,

Plaintiffs,
NO. 01-201L Judge Victor J. Wolski

THE UNITED STATES OF AMERICA,

Defendant.

ORIG NAL
DEPOSITION UPON ORA EXAMINATION
OF SEAN M. RYAN TAKN ON BEHAF OF THE DEFENDANT

Virginia Beach, Virginia

April 27,

2005

Appearances:

By:

SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P. STEPHEN C. SWAIN, ESQUIRE Counsel for the Plaintiffs

U. S. DEPARTMENT OF JUSTICE STEVEN D. BRYANT, ESQUIRE DOMINICK G. YACONO, ESQUIRE Counsel for the Defendant

By:

ZAHN COURT REPORTING
c.t:

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Correct.
And that' s when your mother moved to 23rd street?

Bought the house, yes.
And how old were you when that happened?

23rd

street?
17 or 18.
something like that.

For how many years?

What, that she lived at 23rd Street?

Yes.

20.
20 years, for a long, long time?

Yes.
And how long did you live with her there?

Well, on and off.
You would
were doing?

corne back and

visit from whatever you

Sure.
Did you go to college at 18?

No.
Did you join the service like your dad?
I was in the service.

Okay.

hat service?

The Navy.

Tell me about your -- if you can go through your
assignments and your occupations?
ll. :!i

ZAHN COURT REPORTING ('7r="7' h?7- fiS54

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Went to boot camp in Great Lakes.
Wha t

year was that?
'80. '77.
'80.

May of

Okay.
Excuse me.

May of

I got out May of

Went to b09t camp.

Then I was in Japan for a couple of

months.
home for

constellatio
Then I was stationed on the Kennedy leave, and the captain of the

came

knew that I

Me and his son
was home, and we lived together in Hawaii.

played baseball.
the Kennedy,

So he talked to me, got me transferred to
a half years on the

and I spent like two ' and

Kennedy.

I was in the reserve program.

I did - three

years

acti ve regular Navy,
and then one year.

two active reserve, weekend warrior,

All right, sir.
Six years.

So three years active?

Two years week end warrior?
Weekend warrior.

And what was the final year?

you, they would

That was just like if they needed
call you.

MR. YACONO:

Sleeper.
And I guess you weren
't called

Sleeper reserve.
up in that period?

No.
HN COURT REPORTING