Free Declaration in Support - District Court of California - California

Case 3:07-cv-03758-SC

Document 114-4

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PETER D. KEISLER Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL BENSING D.C. Bar No. 334268 STEVEN Y. BRESSLER D.C. Bar No. 482492 KYLE R. FREENY California Bar No. 247857 Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0693 Facsimile: (202) 616-8460 Email: [email protected] Attorneys for Defendants Hon. Gordon Mansfield, the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Hon. Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Peter D. Keisler, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) VETERANS UNITED FOR TRUTH, ) ) Plaintiffs, ) ) v. ) ) Hon. GORDON H. MANSFIELD, Secretary ) of Veterans Affairs, et al., ) ) Defendants. ) ) ____________________________________ )

No. C 07-3758-SC

NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER TO STAY DISCOVERY Date: December 14, 2007 Time: 10:00 a.m. Courtroom: 1

Pursuant to Rule 26(c), Fed. R. Civil P., defendants move for a protective order, staying discovery for a short period of time until the Court rules on defendants' pending Motion to Dismiss. The basis for this motion is set forth in the attached Memorandum of Points and Authorities and Attachments A, B and C thereto. A Proposed Order is included.

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Case No. C 07-3758-SC Defendants' Motion for Protective Order to Stay Discovery

Dated November 9, 2007

Respectfully Submitted, PETER D. KEISLER Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director /s/ Daniel Bensing DANIEL BENSING D.C. Bar # 334268 STEVEN Y. BRESSLER D.C. Bar #482492 KYLE R. FREENY California Bar #247857 Attorneys U.S. Department of Justice, Civil Division P.O. Box 883 Washington, D.C. 20044 (202) 305-0693 (telephone)

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PETER D. KEISLER Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL BENSING D.C. Bar No. 334268 STEVEN Y. BRESSLER D.C. Bar No. 482492 KYLE R. FREENY California Bar No. 247857 Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0693 Facsimile: (202) 616-8460 Email: [email protected] Attorneys for Defendants Hon. Gordon Mansfield, the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Hon. Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Peter D. Keisler, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) VETERANS UNITED FOR TRUTH, ) ) Plaintiffs, ) ) v. ) ) Hon. GORDON H. MANSFIELD, Secretary ) of Veterans Affairs, et al., ) ) Defendants. ) ) ____________________________________ )

No. C 07-3758-SC

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR PROTECTIVE ORDER TO STAY DISCOVERY Date: December 14, 2007 Time: 10:00 a.m. Courtroom: 1

Introduction Pursuant to Rule 26(c), Fed. R. Civil P., defendants move for a protective order, staying discovery for a short period of time until the Court rules on defendants' pending Motion to Dismiss. On September 25, 2007, defendants moved to dismiss plaintiffs' complaint, asserting several arguments for why the court for lacks subject matter jurisdiction and why plaintiffs'

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claims are legally insufficient. That motion will be fully briefed shortly and is scheduled to be argued on December 14, 2007. Courts have broad discretion to stay discovery where a dispositive motion may resolve some or all claims, thus promoting the interests of judicial economy. See Argument I, infra. It is particularly appropriate for the Court to exercise its discretion to stay discovery in this instance because plaintiffs' discovery requests are unreasonably overbroad and unjustified, even to support the wide-ranging attack on the Department of Veterans Affairs (VA) and its programs plaintiffs wish to mount. The VA has quickly reviewed the discovery requests in the short time available and will demonstrate their overbroad nature, to which it would be prohibitively expensive to respond, and which would cause grave disruption to VA's ability to serve its constituent veterans.1 Background 1. Plaintiffs' Claims Plaintiffs, two advocacy organizations, have filed a complaint for injunctive and declaratory relief that broadly challenges the benefits adjudication programs of the VA as they relates to providing benefits to veterans with post traumatic stress syndrome (PTSD). Plaintiffs challenge the entire process by which VA provides medical services and benefits to veterans with PTSD and their survivors, alleging violations of the Due Process Clause of the Fifth Amendment, the Access to Courts Clause of the First Amendment, section 504 the Rehabilitation Act and 38 U.S.C. § 1710(e)(1)(D). 2. Defendants' Motion to Dismiss As noted, defendants moved to dismiss, identifying numerous jurisdiction and other legal deficiencies with plaintiffs' claims. First, the only possible waiver of sovereign immunity that might apply is the Administrative Procedure Act, (APA) however, the APA is inapposite because plaintiffs have failed to identify any "final agency action" that they challenge. The Supreme

Counsel for defendants have discussed this motion with counsel for plaintiffs who has informed defendants' counsel that plaintiffs' will oppose this motion.
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Court has held that the APA does not allow the type of wholesale, "programmatic" challenge plaintiffs seek to bring in this Court. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004); cf. Allen v. Wright, 468 U.S. 737, 759-61 (1984) (a federal district court "is not the proper forum" to seek "restructuring of the apparatus established by the Executive Branch to fulfill its legal duties."). Second, the only plaintiffs in this action are two advocacy organizations that have failed to identify any individual veterans with standing to sue and whose direct participation is unnecessary. For that reason, the plaintiff organizations lack Article III standing. See Smith v. Pacific Properties and Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004). Third, to the extent plaintiffs do allege harm from concrete agency actions, policies, or procedures related to veterans benefits, Congress, in the Veterans' Judicial Review Act ("VJRA"), Pub. L. No. 100-687, 102 Stat. 4105 (1988), has unambiguously barred district courts from hearing such challenges and, instead, crafted an exclusive review process through the VA, a specially created Article I court, and the Federal Circuit. See 38 U.S.C. §§ 502, 511(a). Plaintiffs attempt to state a facial constitutional challenge to the VJRA itself, but that challenge fails to state a claim upon which relief may be granted. See Defendants' Memorandum in Support of Motion to Dismiss at 14-23. For example, plaintiffs' facial challenge to a statute that limits the fees veterans may pay attorneys who represent them at the earliest stage of the VA adjudicatory process is foreclosed by binding Supreme Court and Ninth Circuit precedents that upheld a more restrictive fee limitation. See e.g. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985). Finally, plaintiffs also claim that the VA is failing to meet recently returning veterans' statutory entitlement to free health care for two years, but this claim also fails as the relevant statute makes it plain on its face that it creates no such entitlement. In sum, defendants' motion to dismiss identifies numerous threshold jurisdictional and other legal problems with plaintiffs' complaint, all of which can be resolved without fact-finding or discovery. In effect, plaintiffs' lengthy Complaint reflects a variety of policy disagreements, but it does not present any claim cognizable in this Court as opposed to the halls of Congress, or

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the exclusive judicial and administrative review system that Congress has created. 3. Plaintiffs' Discovery Requests On October 19, 2007, plaintiffs served a First Amended First Set of Requests for Production of Documents on defendants (Attachment A, hereto) consisting of 129 separate requests, seeking an enormous range of material purportedly related (often very tangentially) to how the VA provides services to veterans with PTSD. For example, plaintiffs seek complete claim files for several categories of veterans (Request numbers 31, 32 and 38) as well as all documents containing certain categories of information about all PTSD-related claims (Request numbers 4-17), that appears to require a review of all such claim files. In essence, in their requests plaintiffs seek every document maintained by the VA (as well as some in the custody of other the Defense Department and the Court of Appeals for Veterans Claims) related in any way to claims for benefits or health care by veterans suffering from PTSD. As explained in the Declaration of Thomas G. Bowman, the Chief of Staff of the Department of Veterans Affairs (Attachment B, hereto, "Bowman Decl."), VA staff have attempted to estimate the cost of searching for and producing all documents responsive to plaintiffs' requests and have concluded that these costs would be enormous ­ searching and producing documents in response to twenty seven of the requests will cost more than $ 1 million each, and of those, responding to 21 will cost in excess of 2 $ million each. Bowman Decl. ¶ 7. On November 2, 2007, plaintiffs served a deposition notice seeking to depose forty-seven current and former employees of the VA and other government entities, beginning on January 8, 2008 and continuing into April of 2008. (Attachment C, hereto). Plaintiffs' proposed deponents include the Acting Secretary of Veterans Affairs, numerous other senior VA officials, (including the Deputy Secretary, the General Counsel and the Inspector General), the Attorney General of the United States Department of Justice, a senior official of the Government Accountability Office, and the current and former Chief Judges of the United States Court of Appeals for Veterans Claims. Plaintiffs' deposition notice demands that all deponents produce any documents they have that are responsive to plaintiffs' document requests, including documents

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found "in each deponent's working files, computer work stations, or other personal files," Attachment C at 1. Moreover, all of these depositions are noticed for San Francisco, even though many of the deponents do not reside or work in the Northern District of California. ARGUMENT I. The Court Has the Discretion to Defer the Initiation of Discovery Pending Resolution of a Motion to Dismiss Challenging the Court's Subject Matter Jurisdiction It is of course well settled that district courts have sweeping discretion to control the nature and timing of discovery. Herbert v. Lando, 441 U.S. 153, 177 (1979) ("[J]udges should not hesitate to exercise appropriate control over the discovery process."). Under Rule 26(c) of the Federal Rules of Civil Procedure, courts have discretion to issue protective orders upon a showing of good cause. Rule 26(c) provides, in pertinent part, that: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending * * * may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . (1) that the disclosure or discovery not be had. Fed. R. Civ. P. 26(c). Courts have consistently exercised such discretion to order a stay of all

17 discovery where it appears that the case can be resolved through a dispositive motion. See e.g. 18 Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987); B.R.S. Land Investors v. United States, 596 19 F.2d 353, 356 (9th Cir. 1979); Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987) ("trial court 20 has broad discretion and inherent power to stay discovery until preliminary questions that may 21 dispose of the case are determined"); Patterson v. United States, 901 F.2d 927, 929 (11th Cir. 22 1990); Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). 23 A stay is particularly appropriate where the dispositive motion challenges the court's 24 subject matter jurisdiction. Thus, the Supreme Court has noted that "[i]t is a recognized and 25 appropriate procedure for a court to limit discovery proceedings at the outset to a determination 26 of jurisdictional matters." United States Catholic Conference v. Abortion Rights Mobilization, 27 Inc., 487 U.S. 72, 79-80 (1988). Where a motion to dismiss presents questions of law for which 28
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factual discovery is neither necessary nor appropriate, as is typically the case where the defendant challenges the court's subject matter jurisdiction, discovery should be stayed pending a resolution of the motion. See Wagh v. Metris Direct Inc., 363 F.3d 821, 829 (9th Cir. 2003) (discovery at the pleading stage is only appropriate where factual issues are raised by a Rule 12(b) motion.); Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984). See generally 6 Moore's Federal Practice § 26.105[3][c]. The obvious rationale for entering a protective order when disposition of a motion may obviate the need for discovery is to conserve the parties' time and resources. See Scroggins v. Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir. 1976). II. The Court Should Grant a Protective Order Staying Plaintiffs' Discovery Requests Pending a Ruling on Defendants' Motion to Dismiss Here, principles of sound case management counsel in favor of a short stay of discovery to permit a ruling on defendants' Motion to Dismiss, which will avoid the waste of the Court's and the parties' resources, with minimal prejudice to plaintiffs. First, defendants' Motion to Dismiss raises strong jurisdictional defenses to plaintiffs' claims. Assuming jurisdiction in this Court, plaintiffs' facial challenge to the constitutionality of the VJRA can be resolved without the need for discovery. See Rae v. Union Bank, supra 725 F.2d at 481. Nor need the Court have to conclude that defendants' motion will be successful in order to grant a stay. When a court can conclude that a defendants' motion to dismiss "does not appear to be without some degree of foundation in law and there is a possibility that defendant may prevail," a stay of discovery is appropriate. Ameritel Inns v. Moffat Brothers, 2007 WL 1792323, *4 (D. Idaho 2007). See also Johnson v. New York Univ. School of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002) (stay of discovery appropriate where dispositive motion has "substantial grounds"); GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284, 287 (S.D. Cal. 2000) (stay where defendants's motion has around a "fifty percent chance of success). Nor is this a case where the probable result of a favorable ruling on a defendants' motion to dismiss will be an order granting plaintiffs leave to amend to address a pleading defect, thus

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justifying the continuation of discovery in the interim. See e.g. In Re Valence Technology Securities Litigation,1994 WL 758688 (N.D. Cal. 1994). Plaintiffs' 278-paragraph complaint includes numerous allegations invoking every relevant authority, hence, if defendants' motion to dismiss is granted, it is doubtful plaintiffs will be able to cure any defects in their allegations. Finally, a brief stay in discovery will not unduly prejudice plaintiffs since defendants' Motion to dismiss will be argued on December 14, 2007 and discovery can be addressed shortly after a ruling. A stay is particularly appropriate here given the enormous burden that would be imposed by plaintiffs' sweeping Requests for Production of Documents as well as their proposed deposition schedule. As another judge of this Court has recognized, "staying discovery may be particularly appropriate . . . where discovery tends to be broad, time-consuming and expensive." In Re NetFlix Antitrust Litigation, 506 F.Supp.2d 308, 321 (N.D. Cal. 2007). As with the antitrust claim at issue in NetFlix, the discovery plaintiffs seek here also promises to be "a sprawling, costly and hugely time-consuming undertaking." NetFlix, supra 506 F.Supp 2d at 321, quoting Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1967 n. 6 (2007). As explained in the Bowman Declaration, employees of the VA have made preliminary inquiries into the estimated cost, in time and funds, to search for and produce non-privileged documents in response to plaintiffs' 129 Requests for Production. Bowman Decl. ¶ 7.2 Mr. Bowman briefly explains the burden that these requests impose on the VA, which maintains 57 Regional Offices, 209 Vets Centers, 153 hospitals, 135 nursing homes, 724 Community Based Outpatient Clinics, and 46 Domiciliary Residential Rehabilitation Treatment Programs, all of which are likely to have records relevant to the provision of services to veterans who suffer from

Given the exceptionally broad scope of plaintiffs' requests and the limited time available for VA staff to conduct these inquiries, the responses received are, admittedly, no more than rough estimates of the cost in time and money to respond to the requests. See Bowman Decl. ¶ 7. In addition, VA staff attempted to calculate the cost of responding to each of plaintiffs' requests as written, even though VA would assert overbreath and relevancy objections to many of these requests. Nevertheless, these calculations do provide an approximate estimate of the aggregate cost of responding to the vast majority of plaintiffs' requests. Id.
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PTSD. Bowman Decl. ¶ 8c; 10. The VA provides numerous and significant services to veterans with PTSD, and consequently the staff at its approximately 1300 care-providing facilities will be required to search for documents responsive to PTSD issues, such as "diagnostic criteria for PTSD applied by VA." (Request number 33). Id. ¶ 10. As Mr. Bowman notes, responding to these requests "would significantly burden the VA health system and distract employees, particularly health care providers, from delivering health care services to veterans." Id. This diversion from providing services to veterans is particularly serious given that disability claims have increased 45% from 2000 to 2007. Id. ¶ 14. Additionally, all of plaintiffs' requests seek "documents," which plaintiffs define to include any tangible thing on which a "communication" has been recorded, and typically make no attempt to identify the personnel who may have authored such communications. Bowman Decl. ¶ 8a. Consequently, each request will require a search of emails (communications, by definition) , thus requiring a review of some or all of VA's 320,000 e-mail accounts. Id. This will impose a significant burden, because "in order to conduct a search of the active e-mail system for messages containing particular words or phrases, each mailbox would need to be searched separately," and hence, searching email records will be inordinately time consuming. Id. At least eight of plaintiffs' requests (Request numbers 16, 17, 31, 32, 38, 103, 104 and 115) will undoubtedly require a search of individual claim files, which are maintained in VA's 57 Regional Offices as well as at its Records Management Center, and another nineteen (Request numbers 1-15, 21, 96-98) may require such searches of individual files. Bowman Decl. ¶ 8b. Searches of such paper files would require VA to write and run a computer program to attempt to locate the relevant claim files, physically retrieve the files and then assign staff to review them for responsive documents. Bowman Decl. ¶ 8c. To take one example, VA estimates that the cost of searching files for death certificates (Request number 115) will require over 73,000 staffhours, costing $ 2.5 million. Bowman Decl. ¶ 8c. Based on the numerous separate inquiries made by VA staff as to the burden in time and

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expense to search various paper files and electronic data bases for plaintiffs' requests, it is estimated that twenty-seven of plaintiffs' 129 requests will each impose in excess of $ 1 million in costs on VA and in the case of twenty of those requests, the cost will exceed $ 2 million. Bowman Decl. ¶ 7. As Mr. Bowman explains, this diversion of resources will directly and significantly impact the VA's mission of providing health care and benefits to the veterans it serves. See Bowman Decl. ¶¶ 10-15. For example, responding to the requests "would divert many of [VA's] regional office employees from their primary mission of delivering benefits to veterans and their survivors to searching records and reviewing files." Id. at ¶ 15. The burden of responding to plaintiffs' requests goes far beyond imposing administrative burdens and inconvenience on the VA; it will have an immediate adverse impact on veterans and their families.3 Finally, the requests also seek the production of medical treatment files relating to mental health services, which records are exceptionally sensitive and are subject to statutory confidentiality protections and potentially covered by the psychotherapist-patient privilege. Bowman Decl. ¶ 9. Even if steps are taken to protect veteran confidentiality (steps which will further add to the time and expense of responding), there is always the possibility that veteran confidentiality will be compromised. As Mr. Bowman notes, "Vet Center program administrators are concerned that such a disclosure would undermine the Vet Center Program's hard won trust with the combat veteran population and could cause serious barriers to care for new veterans needing readjustment counseling services." Id. Plaintiffs' excessively broad requests, which make no effort to balance the need for the materials sought against the damage that disclosure will cause, should not be permitted until threshold legal issues have been resolved.

Defendants' objections to the extremely burdensome nature of plaintiffs' discovery requests are offered in support of their request for a stay of discovery pending a ruling on their motion to dismiss. In the event that some or all of plaintiffs' claims survive the motion to dismiss, defendants reserve the right to reassert these and other objections to plaintiffs' document production requests and deposition notices.
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CONCLUSION For all of the foregoing reasons, the Court should grant defendants' Motion for Protective Order and stay discovery until after a ruling on defendants' Motion to Dismiss. A Proposed Order is attached.

Respectfully Submitted, PETER D. KEISLER Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director /s/ Daniel Bensing DANIEL BENSING D.C. Bar # 334268 STEVEN Y. BRESSLER D.C. Bar #482492 KYLE R. FREENY California Bar #247857 Attorneys U.S. Department of Justice, Civil Division P.O. Box 883 Washington, D.C. 20044 (202) 305-0693 (telephone) Counsel for Defendants

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ssistant Attorney General nterirn United States Attorney CHARD LEPLEY ssistant Branch Director ANIEL BENSING D.C. Bar No. 334268 D.C. Bar No. 482492 YLE R. FREENY California Bar No. 247857 ttorneys nited States Department of Justice ivil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0693 Facsimile: (202) 6 16-8460 Email: Daniel.Bensina($USDOJ.gov ttorneys for Defendants Hon. Gordon H. Mansfield, the U.S. Department of Veterans Affairs, on. James P. Terry, Hon. Daniel L. Cooper, Hon. Bradley G. Mayes, Hon. Michael J. Kussmar K. Navara, the United States of America, Hon. Michael B. Mukasey, and Hon. William P. reene, Jr.

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/VETERANS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO

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FOR COMMON SENSE and ) METERANS UNITED FOR TRUTH, )
Plaintiffs, v. on. GORDON H. MANSFIELD, Acting of Veterans Affairs, et al., Defendants.
) ) ) ) ) ) )

NO. C 07-3758-SC

DECLARATION OF THOMAS G. BOWMAN

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I, Thomas G. Bowman, declare:

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I am employed as the Chief of Staff of the U.S. Department of Veterans Affairs

The information contained in this declaration is based on my personal knowledge and

P r m a t i o n made available to me in my official capacity.

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Following my retirement from the Marine Corps as a colonel in October 1999,I

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erved as senior counsel to the Committee on Government Reform of the U.S. House of epresentatives until February 2002, when I joined VA. At VA, I served as Executive Assistant nd Acting Assistant Secretary for Public and Intergovernmental Affairs before leaving in June 003 to serve as State Court Administrator for the Rhode Island Judiciary and Chief of Staff to he Chief Justice of the Rhode Island Supreme Court.

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I returned to VA in June 2004 to become the Deputy Assistant Secretary for

ongressional and Legislative Affairs. In August 2004 I was appointed Deputy Chief of Staff. n October 12,2005, I was appointed Chief of Staff for VA. 4. In my official capacity I work with the Secretary and Deputy Secretary to manage

ay-to-day operations of VA, the federal government's second-largest Cabinet department, with ore than 247,000 employees at more than 1,300 points of service including Regional Offices, A medical centers, outpatient clinics, Vet Centers and national cemeteries throughout the ountry. As Chief of Staff, I am familiar with VA's operations and organizations. 5. I am aware of this litigation and of the defendants' Motion to Dismiss all of the

laintiffs' claims, filed on September 25,2007, and set for hearing before the Court on ecember 14,2007. I am also aware that on October 18 and 19,2007, the two plaintiff rganizations served 129 Requests for Production (RFP) on defendants including VA.

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I am aware that on October 23, 2007, VA's Department of Justice (DOJ) counsel

et with more than 20 VA staff members representing the offices potentially implicated in this awsuit, including the Chiefs of Staff for both the Veterans Health Administration (VHA) and eterans Benefits Administration (VBA). The purpose of this meeting was to identify offices ithin VA likely to have information relevant to the plaintiffs' requests. DOJ counsel requested hat the offices identified as potentially having responsive information estimate the cost of esponding to plaintiffs' requests in terms of the time required, the monetary expenditure equired, and opportunity costs of complying. 7. I have also been advised that, given the ambiguity of some of the plaintiffs'

equests, the limited time to respond, the size of the agency and the fact that many different
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were assigned to the task of developing cost estimates, the assumptions and ethodologies used in developing the estimates might vary. Moreover, VA employees ttempted to identify the offices most likely to have responsive information but, because of the road and vague nature of many of the requests, some estimates may not account for all costs ssociated with the 129 requests. VA staff did not attempt to estimate the costs of responding to ertain requests that were patently irrelevant or sought unreleasable information. Nevertheless, ased on the good faith estimates provided by VA staff and program offices interpreting the Ps, I believe that these estimates conservatively capture the rough magnitude of the burden hat would be placed on VA if the Department is required to respond to the plaintiffs' broad requests. We estimate that the cost of complying with 27 of plaintiffs' 129 RFPs is ore than $1 million dollars each and that the cost of complying with 2 1 of these is estimated at more than $2 million dollars each.
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To fulfill plaintiffs' document requests would require many time-consuming

Aectronic and manual searches of computer systems. a. For example, plaintiffs seek "All DOCUMENTS CONCERNING any one or more of the [requests for production]." RFP pg. 8. Plaintiffs have defined

"document" to include "e-mail or electronic mail." See RFP, Definition 2. Read literally, plaintiffs' requests will require VA to search all of its e-mail boxes for responsive documents. Moreover, plaintiffs make no effort to identify personnel who may be in possession of these items. Given the size of VA and the ubiquitous nature of e-mail, the information sought by plaintiffs could be located anywhere in VA's more thar 320,000 e-mail boxes. I am told by VA information technology staff that in order to conduct a search of the active e-mail system for messages containing particular words or phrases, each mailbox would need to be searched separately. Such searches involve

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connecting to an individual employee's mailbox, conducting a search, and copying any responsive records; a process estimated to take between five and ten minutes per mailbox, excluding the time required for setup and export of messages. I have been

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informed that given the ambiguity in the plaintiffs' multiple, broad requests and VA's size, conducting e-mail searches will place a substantial burden on VA's information technology resources. Additionally, each VA employee would be required to read plaintiffs' 129 paragraph request for production and then manually search his or her worl space for responsive materials. It is my opinion as Chief of Staff, that conducting such a broad based search will divert valuable resources necessary to provide benefits and services to veterans and survivors. b. Based on the estimates received, complying with requests 16, 17, 3 1,32, 38, 103, 104, and 115 will require a search of individual claims files, which are maintained a VA Regional Offices and VA's Records Management Center. Another nineteen requests (request numbers 1-15; 2; 96-98) may require individual searches of files. VA staff estimate that responding to these requests will cost millions of dollars. For example, in response to DOJ's request for cost estimates of complying with RFP 1, the Board of Veterans' Appeals' (BVA) response provides that BVA's electronic database containing the relevant information lacks the capacity to identify the disease or injury on which of the underlying claim for which dependency and indemnity compensation (DIC) (i.e., compensation for service-connected death) is based. In order to satisfy this request, which seeks databases, lists, and printouts showing pending service connected death or disability compensation claims (SCDDC) based on PTSD or other mental disorders, BVA employees would have to manually search each claims file to identify DIC, cause of death claims, or other compensation claims based on PTSD or other mental disorders. BVA estimates it would cost nearly $2.4 million to produce the information requested b~
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RFP 1 alone. c. Similarly, many of VA's records are stored at the agency's 57 Regional Offices and the Records Management Center (RMC) in St. Louis, Missouri. Many of plaintiffs' requests would require electronic and/or manual searches of records at those offices. For example, RFP 115 seeks copies of all death certificates for veterans in DIC

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claims in which the death certificates show suicide or possible suicide as a cause or

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contributing cause of death. Although VA does not have existing reports that would

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provide that information, it is possible that VBA has responsive materials in claims files (i.e. death certificates). Therefore, to comply with plaintiffs' request would require VA to write and run a program to attempt to locate an estimated 439,000 claim files at the

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Regional Offices and the RMC.' Identified files would then have to be retrieved from the Regional Office and RMC file banks by GS-4 file clerks. VBA estimates that the files could be pulled at a rate of 100 per hour (4,390 hours). Once retrieved, GS-10s at each of the 57 Regional Offices and RMC would review the files to identify and copy death

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certificates that have suicide listed as a contributory cause of death. VBA estimates that at a rate of six per hour, it would take 73,167 hours to review the folders and make the copies. Based on the cost estimate provided to me by VBA, responding to plaintiffs' RFP 115 could cost VBA 62.5 million. This figure does not reflect the opportunity costs, i.e., lost productivity in adjudicating claims while employees are diverted to reviewing claims files. It is my opinion as the Chief of Staff that diverting resources from claims

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adjudication will have a detrimental impact on VA's ability to adjudicate benefits claims from veterans and their survivors. 9. In addition to the cost and workload burden on VA, plaintiffs' request also raises

berious privacy concerns, especially for those requests seeking medical treatment files related to ental health services. Congress has accorded significant protections to such records, see e.g. U.S.C. $5 5701, 7332, in view of the potential harm that disclosure may have on patients and

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he physician-patient relationship. For example, plaintiffs' RFP 3 1 and 120 potentially involve held by the 209 Vet Centers nationwide. Vet Centers provide readjustment counseling

bervices to combat veterans to assist in the transition from military to civilian life. Services

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This figure reflects VBA's estimate as to the number of claims files that will contain information on veterans' 1,2000. VBA staff based this estimate upon the number of active Dependency and Indemnity ompensation (DIC) files (329,000) plus an estimate of the conforming records from the 1.1 million inactive records Case No. C 07-3758-SC Declaration of Thomas G. Bowman Accompanying Defendants' Motion to Stay Discovery
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rovided by the Vet Centers includes, among other things, counseling, group counseling, ereavement counseling, and medical referrals. Vet Center program officials have

onservatively estimated that Vet Center paper files contain counseling records for more than 2.5 llion veterans. In addition, much of this information is potentially covered by the

sychotherapist-patient privilege. Vet Center program administrators have stated that producing

ocuments from the Vet Centers would violate VA's 28-year policy guaranteeing strict for services rendered by not releasing records without the veteran's consent. Vet

enter program administrators are concerned that such a disclosure would undermine the Vet /Center program's hard won trust with the combat veteran population and could cause serious to care for new veterans needing readjustment counseling services. Based on the provided by Vet Center program officials, my understanding of the nature of the Vet enter model, and my experience with the veteran community, I believe that requiring VA to p d u c e information related to treatment records for mental health services could have a negatik Impact on veterans' willingness to seek mental health care services from VA. 10. Plaintiffs' requests for veterans' records and related correspondence will also

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F i r e a search of records at VA's nearly 1,300 sites of care including 153 hospitals, 135 homes, 724 Community Based Outpatient Clinics, 209 Vet Centers, and 46 Domiciliary

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esidential Rehabilitation Treatment Programs. Over 5.5 million individual patients are seen at facilities each year. VA conducted nearly 54 million outpatient visits and operated 54,000 beds in fiscal year (FY) 2006. VHA employs 2 10,000 individuals throughout the

p a r e system, 59 percent (123,900) of whom provide direct patient care. Requiring /clinicians to search their files for, u, information related to "diagnostic criteria for PTSD /applied by VA," RFP 33, "document preservation instructions and measures based upon the hling of this action," RFP 58, or specific information about all potential PTSD patients would /rignificantly burden the VA health system and distract employees, particularly health care broviders, from delivering health care services to veterans.
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Recently, VA's patient population has evolved to include Operation Enduring

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Freedom /Operation Iraqi Freedom (OEFIOIF) veterans. Of the 75 1,273 OEFIOIF veterans separated through October 2007, 263,909 have obtained health care in a VA facility since FY 2002. VA operates the nation's only Polytrauma System of Care in support of the needs of severely injured OEFIOIF veterans. Requiring health care providers in VA's Polytrauma :enters to produce documents related to the request for production would distract VA health care providers from delivering the critical level of care necessary for these OEFIOIF veterans. 12. Plaintiffs' first Request for Production of documents would divert enormous staff

and resources from VA and would prevent VA from timely providing benefits and health care to veterans and their survivors. The Chief of Staff of VHA has advised me that requiring VA to fulfill the request for production in its present form would have an adverse impact on VHA in the context of VHA's four missions: clinical care, research, education and support to the Department of Defense during national emergencies. To the degree that health care professionals (and their support staff) are involved in the retrieval of information related to this request, care provided to veterans will be significantly delayed and the quality of health care for

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hose veterans will be significantly impacted. Our assessment is that health care professionals and their support staff) will be significantly involved in the retrieval of information related to

his request. 13. Similarly, VA's ability to timely provide veterans benefits through VBA will be

ignificantly and adversely affected by the impact of the labor-intensive reviews and searches would be required to respond to plaintiffs' request for production. VBA administers P s that provide financial and other forms of assistance to veterans and their survivors

k l u d i n g compensation, pension, survivors' benefits, rehabilitation and employment assistance, kducation assistance, home loan guaranties, and life insurance. Within VBA, the Compensation

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nd Pension Service administers disability compensation and dependency and indemnity ompensation benefit programs. This fiscal year, VA will pay compensation and dependency

land indemnity compensation benefits totaling nearly $37.3 billion dollars to over 3.2 million

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eterans and survivors. VA will also pay disability and death pension benefits totaling nearly
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$3.8 billion dollars to 513,000 veterans and survivors. 14. The time required to search for the information requested by plaintiffs will

detrimentally impact VA's responsibilities to claimants. Disability claims from returning war veterans, as well as from veterans of earlier periods, have increased 45 percent between 2000 and 2007. VBA projects that disability claims in 2008 will increase to an estimated 840,000. The increasing claims volume has significantly increased VBA's inventory of pending Aairns (now over 400,000) and the length of time veterans must wait for decisions on their claims (averaging 177 days in October 2007). 15. Over the past year, VBA has been aggressively hiring additional staff to address

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its growing workload, improve the timeliness of decisions, and expedite processing of claims om OIFIOEF veterans. This request for production would divert many of our regional office

mployees from their primary mission of delivering benefits to veterans and their survivors to

earching records and reviewing files. Similarly, new employees, who require more than two ears to become proficient, would lose valuable training time if tasked with responding to the

P. Although the subject of this litigation is service connected death and disability

ompensation, were VBA employees required to search for the information sought in the RFP,

all programs administered by VBA would be adversely affected because VBA employees generally adjudicate all types of benefits claims. Overall, this would have a negative effect on our efforts to increase resources devoted to claims processing and expedite OIFIOEF claims.

I declare under penalty of perjury that the foregoing is true and correct. Executed on
ovember 9,2007.

THOMAS G. BOWMAN

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