Free Motion to Compel - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, v. Anthony Principi, Secretary Department of Veteran's Affairs,

CIV-03-2300 PHX ROS DEFENDANT'S OCTOBER 28, 2005 DISCOVERY DISPUTE MEMORANDUM

Defendant. Defendant respectfully submits his memorandum regarding the pending discovery disputes in accordance with the Court's October 14, 2005 Order. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION A district court may impose sanctions for abuses of the discovery process under Rule 37 of the Federal Rules of Civil Procedure. Wanderer v. Johnston, 910 F.2d 652 (9th Cir.1990). Fed.R.Civ.P. 37 requires that any sanction be specifically related to the particular "claim" which was at issue. See Fed.R.Civ.P. 37(b)(2); See also, Insurance

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Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 707(1982). As will be shown in detail below, however, no rule violations have occurred and

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no prejudice has been demonstrated. Specifically, the defendant timely responded to the plaintiff's October 4, 2004 Interrogatories and Requests for Production on November 8, 2004, and timely supplemented his prior responses as required by Rule 26(e), F.R.Civ.P. Furthermore, as demonstrated below, the plaintiff's repeated attempts to merge formal and informal discovery requests are without factual or legal merit. Plaintiff's argument that responding to a letter request for information at the request of a private mediator is the same as responding to previously answered formal interrogatories and requests for production is contrary to law regarding sanctions pursuant to Rule 37, F.R.Civ.P. ARGUMENT

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When the plaintiff raised concerns regarding the defendant's discovery responses, the defendant responded to each of the plaintiff's concerns. EXHIBITS 1 9, 11, 12, 15, 16, 18, 19, 21, 22, 23, 24, 25. The defendant also engaged in a telephone conference call with plaintiff's counsel on January 11, 2005. Plaintiff's counsel faxed a letter to defense counsel just prior to the conference call. EXHIBIT 26. During that conversation plaintiff's counsel agreed to clarify or re-word several interrogatories that were the subject of discussion. However, no clarification was received by defense counsel. The defendant responded to this letter on February 8, 2005. EXHIBIT 9.

On October 3, 2005, the defendant filed his "Exhibits to Defendant's Discovery Dispute Memorandum." [Docket Entry # 36]. References to EXHIBITS # 1- 24 are those exhibits set forth therein. Additional exhibits are attached to this Memorandum beginning with EXHIBIT # 25.

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1.

Redacted Documents In the initial response to the October 4, 2004 discovery requests, the defendant

redacted the names of present or former VA employees, as required by the Federal Privacy Act of 1974, 5 U.S.C.§552a. Plaintiff's counsel disagreed but provided no citation to an exception, under Federal law, which allowed the defendant to produce that information. It was the defendant who suggested and prepared the Protective Order which the Court signed on January 27, 2005. EXHIBIT 7. Once the Order was received, the defendant timely submitted supplemental discovery response with the redaction of names and other protected information removed. EXHIBITS 8, 9 . By letter dated March 7, 2005, the defendant inquired as to whether there were

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any other redactions that the plaintiff wished to discuss. EXHIBIT 11. No response was sent by plaintiff's counsel. Nonetheless, plaintiff counsel, in his October 21, 2005, Memorandum to the Court submitted the redacted responses, Exhibits E and F and G, when in fact he was given "clean" copies on February 8, 2005. EXHIBIT S 8,9 . This is misleading. 2. Rule 26(e) discovery supplementations. On November 8, 2004, the defendant timely responded to plaintiff's Requests for Production. EXHIBIT 1. Because not all responsive documents were available as of November 8, 2004, the plaintiff was advised that documents were being located and photocopied. No objection was raised by plaintiff's counsel at that time. The defendant timely supplemented his November 8, 2004 responses as required by Rule 26(e), F.R.Civ.P. On November 23, 2004 the plaintiff was advised that it was estimated that at least 1788 pages of documents had been identified and were being copied. EXHIBIT 2.

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On December 3, 2004 supplemental responses to Interrogatories 3, 4, 11, and 22 and requests for production 1,2,3,4,5,6,7,8, and 9 were hand-delivered by private courier to plaintiff's counsel. EXHIBIT 3. On January 12, 2005 supplemental responses to Interrogatories 3, 9, 12, 15 and 20 and requests for production 6,7,8, 9, 11 and 14 were hand-delivered by private courier to plaintiff's counsel, along with the proposed Protective Order for plaintiff's counsel to review. EXHIBIT 6. On February 8, 2005 plaintiff was served with unredacted supplemental responses to previously redacted interrogatory responses and spread sheet ( Request for Production # 3). EXHIBITS 8,9. Further, the defendant explained the basis for the November 8, 2004 objections and provided case law in support of said objections. EXHIBIT 9, 11, 16. Plaintiff's

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counsel did not present any legal argument to dispute the defendant's objections. Therefore, by the end of June, 2005 the defendant concluded that such discovery issues were closed. 3. False and misleading representations to the Court. This discovery dispute came before this Court based upon a one page statement by plaintiff's counsel dated September 2, 2005. EXHIBIT 20 . In this statement plaintiff's counsel made the following assertion which is both false and misleading: "On November 8, 2004, Defendant answered Plaintiff's Interrogatories. ...[T]he Defendants, after waiting almost ten (10) months, on June 16, 2005 submitted several objections for not providing the answers or requested Documents." The defendant did not wait until June 16, 2005 to object to the October 4, 2004 interrogatories and requests for production. Indeed, in the first paragraph of EXHIBIT 20 the plaintiff admits, referring to the October 4, 2004 interrogatories, "... Defendants

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answered Fifteen (15) interrogatories, Defendant objected to eight (8)." Therefore, the confusion expressed by the Court at the two discovery hearings in this matter is the result of plaintiff's inconsistent and misleading arguments and failure of plaintiff's counsel to advise this Court that he had, as of June 16, 2005, no less than 3331 pages of documents produced by the defendant: INTERROGATORIES #3 - 50 pages #4 - 1093 pages #7 - 42 pages #9 - 5 pages #11 - 51 pages #12 - 385 pages #15 - 76 pages #17 - 14 pages #20 - 1 page #22 - 13 pages REQUEST FOR PRODUCTION #1 - 343 pages #2 - 734 pages #4 - 178 pages #5 - 29 pages #6 - 43 pages #7 - 66 pages #8 - 10 pages #9 - 110 pages #11 - 86 pages #14 - 2 pages On June 16, 2005 an additional forty-six (46) pages of documents were produced in response to plaintiff's April 12, 2005 letter. EXHIBIT 27.

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Furthermore, in her statement to the Court, dated October 13, 2005, EXHIBIT 28 , plaintiff argues that the defendant's June 16, 2005 responses to plaintiff's counsel's April 12, 2005 letter, EXHIBIT 27, were untimely: "Defendant's supplemental objections are untimely, they were not served within 30 days after the service of the interrogatories, and the 30-day period was not extended by an order of the Court or by an agreement of the parties in writing." This argument is directly contrary to the statement made to this Court by plaintiff's counsel on September 2, 2005: The mediator orders us in 90 days, I'm going to give the defendants and the plaintiffs 90 days to clarify their questions. Hearing transcript page 13, lines 5-7. EXHIBIT 29. In his June 1, 2005 letter, EXHIBIT 13. Mr. Patterson stated: "At the request of the mediator and with both parties in agreement it was decided that we would present a final round of disputed questions regarding discovery.... On several occasions we discussed the mediator allowance for the parties to have ninety(90) days to completely respond." See also, EXHIBIT 14 (similar statement by plaintiff's counsel.)
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1 Additionally, defense counsel's letter dated April 12, 2005, EXHIBIT 12, stated: 2 3 4 5 6 7

"This letter is sent in accordance with our April 7, 2005 agreement in which the mediator, Janice Moore requested that we exchange specific questions regarding additional documents and information, discuss when each side anticipates being able to respond then discuss scheduling the next mediation session. I agree with your emails suggestion today that we discuss the above time lines. I anticipate it will be at least a week before Mr. Heck can obtain enough information from the EEOC, ORM and other VA custodian of records to provide an estimate of when the VA can begin responding to your discovery requests in the April 12, 2005 letter."

8 The April 12, 2005 letter was not a set of Interrogatories and Requests to Produce and was 9 10 11 12

not served on defendant as such. EXHIBIT 31. Because the defendant was not served with a formal discovery request, Rule 37, F.R.Civ.P., is not applicable as a matter of law. As stated in Suid v. Cigna Corporation 203 F.R.D. 227 , 228-229 (D. Virgin Islands

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Fed.R.Civ.P. 34 provides a procedure for production of documents by a party opponent. Rule 34(b) provides that the requesting party may move for an Order under Rule 37(a) with respect to any failure to respond to the request. Neither Plaintiff's assertion that the documents were mentioned and identified at depositions, nor Plaintiff's letters with regard thereto create any basis for relief under Rule 37(a). The Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed.R.Civ.P. 37 governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed.R.Civ.P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond pursuant to Fed.R.Civ.P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery. Similarly, in the case of Sithon Maritime Co. v. Mansion, 1998 WL 182785 *2 (D.

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1 Kan. 1998) the district court held: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

The court will not consider the letter of June 3, 1997, as a formal request for production of documents. The Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed.R.Civ.P. 37, governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances, not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed.R.Civ.P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond, pursuant to Fed.R.Civ.P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery. Fed.R.Civ.P. 37(a)(2)(B) permits a party to move to compel production of documents "if a party, in response to a request for inspection submitted under Rule 34, fails to respond." An evasive or incomplete response is a failure to respond, within the meaning of Rule 37(a)(2)(B). Fed.R.Civ.P. 37(a)(3). Fed.R.Civ.P. 34(a) establishes the permissible scope of production. Fed.R.Civ.P. 34(b) establishes the procedure for submitting the request and for responding to it. The letter of June 3, 1997, does not meet the requirements of Rule 34. Plaintiff did not "serve" the letter upon Mercury as contemplated by the Rule. See Fed.R.Civ.P. 34(a). The letter does not give Mercury thirty days in which to provide a written response. See Fed.R.Civ.P. 34(b). Plaintiff cannot properly move to compel production of documents sought in an informal letter requesting production. Although both informal investigation and formal discovery have their proper place in the litigation arena, the Federal Rules of Civil Procedure address only formal discovery. The court thus overrules the motion of plaintiff to the extent it seeks to compel further production in response to the letter of June 3, 1997. Therefore, it would not be appropriate to impose sanctions with respect to any

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mediation process. Plaintiff's various arguments that the April 2005 letter "mirrored" or "arose out of" plaintiff's October 4, 2004 discovery request are simply misleading. Furthermore, on September 2, 2005 this Court appears to have been mislead by plaintiff's
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1 argument, EXHIBIT 20 , that the defendant waited "... almost ten (10) months, June 16, 2 3 4 5 6 7 8 9 10 11 12 13 14

2005 submitted several objections for not providing the answers or requested Documents" and thereby "waived their objections and should be ordered to provide the information that they stated would be in there(sic) answers to the interrogatories.": THE COURT: All right. Mr. Mayfield, there is a request that I hold your client in ­because he failed to answer various questions, in violation of the rules. What is your reponse? I have read your response here. Do you wish to elaborate? Hearing Transcript page 1, lines 11-15. EXHIBIT 29. *** Some of it I don't understand, particularly, Mr. Mayfield, and in particular I don't understand why it took so long to object to the eight interrogatories. There may be a paper history here, where you have told them they should have ­ or Mr. Patterson should have understood that you were objecting to them, or that you would provide answers to them, but much later, and in fact, on June 16, 2005. This is ­ this is a fact-intensive issue. Hearing Transcript page 23, lines 3-12. EXHIBIT 29. Once again, on October 21, 2005, the plaintiff's counsel presented false and

15 misleading assertions to this Court. Docket Entry # 47, filed on October 25, 2005, contains 16 17

additional factual misstatements, misleading assertions and fails to set forth the factual basis for alleging that the defendant had failed to timely respond to the plaintiff's October

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4, 2004 interrogatories. He cites no case law for this meritless argument. Only the

20 October 4, 2004 discovery requests are properly before this Court with respect to the 21 provisions of Rule 37, F.R.Civ. P. 22 23 24 25 26 27 28

The October 21, 2005 letter to the Court further misstates the function of the mediator Janice Moore. She was not asked nor did she agree to "... solve the discovery dispute." If in fact this were true, then the plaintiff should have first approached her and not this Court to "solve the discovery dispute." The Mediation was placed on hold for the sole reason that Mrs. Slaughter-Payne refused to proceed until she obtained further
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1 information from the defendant. EXHIBIT 16, pages 5-7. The defendant therefore 2 3 4 5 6

proceeded to obtain and provide information requested in the April 12, 2005 letter. The key factors for imposing sanctions are prejudice and the availability of lesser sanctions. Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir.1993). The plaintiff has not demonstrated to this Court any harmful prejudice. By June 16, 2005, defendant

7 had produced over 3331 pages of documents and responded to all of plaintiff's formal and 8 informal discovery requests. Counsel's mere argument is not evidence of prejudice. 9 10 11

Furthermore, plaintiff's counsel's representations to this Court on September 2, 2005, EXHIBIT 20, that the defendant did not file objections to the October 4, 2004 formal discovery until June 16, 2005 is likewise a material misrepresentation. This Court

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has before it the defendant's October 3, 2005, comprehensive set of exhibits. Docket Entry

14 # 36. This set of documents sets forth the defendant's responses and objections raised on 15 November 8, 2004. Subsequently, in responding to the April 12, 2005 letter, the defendant 16 set forth specific objections to those questions. Plaintiff's October 21st letter to the Court 17 misleadingly asserts; " Of the twenty-seven questions, Defendant objected to every 18

question except twelve and twenty-seven." On the contrary, while objections were

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legitimately raised by the defendant, without waiving an objection, the defendant properly referred plaintiff to prior discovery responses or provided information and produced

22 documents except when privileged documents were requested, and in response to question 23 # 26. Furthermore, the defendant has not waived his objections based on the "self-critical 24 analysis privilege." See November 8, 2004 response to Request for Production # 17. The 25 26 27 28 9

defendant raised a specific objection to plaintiff's October 4, 2004, Request for Production # 17 which requested production of the private sector analogs of federal affirmative action

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1 plans. That objection sufficiently covered the documents requested in the October 4, 2 3 4 5 6

2004, Interrogatory # 7. It bears noting that plaintiff's October 4, 2004 interrogatories and requests to produce intermixed private sector questions with public sector questions. See, Oct 4, 2004, interrogatories #4, 5, 8 ; Request for Production # 17. She repeated this error in her April,

7 2005 questions. See questions # 4, 5. With the exception of privileged documents, the 8 defendant has furnished or made available all the information it has been able to obtain. 9 The prevailing view is that an incomplete response does not warrant the imposition of 10 11

Rule 37(d) sanctions unless it is evasive, misleading or so incomplete that it is tantamount to no response at all. Bandalamenti v. Dunham's, Inc., 896 F.2d 1359, 1363 (Fed. Cir

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1990) (response must be "so evasive and misleading as to constitute a failure to respond");

14 Black Panther Party v. Smith, 661 F.2d 1243, 1258 (D.C.Cir.1981) (responses must be 15 "grossly inadequate" or there must be "evidence of evasiveness"); Airtex Corp. v. Shelley 16 Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir.1976) ("so flawed as to be tantamount to 17 no response at all"). 18 19 20 21

The defendant responded to every letter plaintiff's counsel sent regarding his

perceived "discovery violations" by the defendant. However, plaintiff's counsel has not responded to any of the defendant's letters regarding the plaintiff's discovery response

22 deficiencies. EXHIBITS 4, 5, 11, 18. Likewise, he failed to respond to defense counsel's 23 letters regarding any other redacted documents and requests for case law contrary to the 24 basis for the defendant's objections. EXHIBIT 11. 25 26 27 28 10

Furthermore, at no time has plaintiff's counsel outlined to this Court how or in what manner the defendant's responses to his formal discovery are deficient. He repeatedly has

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1 asserted that "...Nothing responsive has been produced." EXHIBITS 10, 14. Plaintiff 2 3 4 5 6

already had the entire Administrative Records concerning her timely complaints. [The Non-Selection Case (Agency Case No. 200P-2674); The Transfer Case (Agency Case No. 200P-0644-2002100409)]. By June 16, 2005, well over 3331 pages of documents had been produced to the plaintiff. In fact, after the defendant responded to the April 12, 2005

7 letter, the defendant received no further correspondence from plaintiff's counsel and 8 concluded that any pending concerns had been addressed. As formal discovery does not 9 close until November 30 2005, the plaintiff had over five months to conduct additional 10 11

discovery based upon the totality of the documents and information produced in addition to identified and known witnesses.

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Plaintiff has not demonstrated to this Court one single "bad faith" discovery

14 response to her formal discovery. In short, there are three appropriate responses to a 15 request for production of documents: (1) an objection to the scope, time, method and 16 manner of the requested production; (2) an answer agreeing to the requested scope, time, 17 place and manner of the production; or (3) or a response offering a good faith, reasonable 18

alternative production, which is definite in scope, time, place or manner. Further, a party may file a hybrid answer, which objects to some of the requested production, while

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answering the unobjectionable portions. Fed.R.Civ.P. 34(b); Jayne H. Lee, Inc. v. Flagstaff

22 Industries Corp. 173 F.R.D. 651, 656 (D. Md. 1997). 23

On September 23, 2005 the parties met and conferred and reached agreements

24 regarding discovery response disputes. On October 10, 2005 the defendant responded to 25 26 27 28 11

the issues discussed at the September 23, 2005, meeting. EXHIBIT 25. A party which had been ordered to fully comply with discovery requests is not subject to sanctions for failure

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1 to comply, where the party substantively supplemented responses and provided responsive 2 3 4 5 6

documents and the opposing party which sought sanctions had failed to point out any specific substantive deficiencies in the responses. Morgan v. Havir Mfg. Co., 887 F.Supp. 759, 764 (E.D. Pa. 1994) reconsideration denied 1995 WL 20817. According to Sterling v. Interlake Industries Inc., 154 F.R.D. 579 (E.D.N.Y. 1994), the imposition of discovery

7 sanctions is a drastic remedy, and should only be applied in those rare cases where the 8 party's conduct represents flagrant bad faith and callous disregard of the Federal Rules of 9 Civil Procedure. Again, in this particular instance, defendant acted in good faith and 10 11

supplemented his responses. In Troyer v. Karcagi, 488 F. Supp. 1200 (1980), the District Court ruled that although parties had been dilatory and negligent in supplying late and

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incomplete interrogatory answers, their conduct did not rise to the level of gross

14 negligence or willfulness justifying sanctions. 15 16 17

4. October 4, 2004 Interrogatories # 4 -22 and Plaintiff's October 21, 2005 Exhibits A-H. In addition to the defendant's exhibits, filed on October 3, 2005, a review of

18 plaintiff's October 21, 2005 exhibits A-H clearly establishes that the October 4, 2004 19 formal discovery interrogatories are different from the April 12, 2005 letter requests. By 20 21

way of example, the defendant will briefly discuss his response to Interrogatory # 4. 10/04/04 INTERROGATORY NO.4:

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For the period from May 1, 1994 through the date of your response, please list all governmental investigation in which any employee, former employee, or prospective 24 employee has alleged race discrimination that have been conducted by or are pending against you with the Arizona Civil Rights Division, Equal Employment Opportunity, 25 Office of Resolution Management, the United States Equal Employment Opportunity 26 Commission, the United States Justice Department, the United States Labor Department, and/or any other state or federal governmental entity that has conducted an investigation of
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1 you. With respect to each investigation, describe all relevant facts, including but not 2 limited to the following: [emphasis added] 3 4 5 6 7 8 9

(a) Charging parties; (b) Dates of charge and complaint; © Charged parties; (d) Type of discrimination alleged; and (e) Outcome of case, or if case pending, status of case. ANSWER: The Arizona Civil Rights Division is without jurisdiction to conduct an investigation of a federal agency. Defendant is unaware of any investigation by the other federal entities mentioned. The term "governmental investigation" means a sua sponte investigation by a

10 federal agency such as the E.E.O.C. of another entity, e.g.: Investigation by the E.E.O.C. 11 42 U.S.C. § 2000e Definitions: "(l) The term "complaining party" means the Commission, 12 13 14 15 16

the Attorney General, or a person who may bring an action or proceeding under this subchapter."; 29 U.S.C. § § 1601.11. "Charges by members of the Commission." When asked this question, the defendant properly concluded that this was an agency-based investigation of the CTHVAMC and not an investigation of an individual federal

17 employees discrimination complaint. 18

Subsequently, when the plaintiff sent his letter of April 14, 2005, the defendant

19 provided a proper and complete response to the questions asked in that letter. See 20 21

Plaintiff's October 21, 2005 Exhibit B. Obviously, these are two different questions. However, once again, plaintiff's counsel in his October 21, 2005 , memorandum makes

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misleading statements: "On April 14, 2005, Plaintiff submitted twenty-interrogatories questions that mirrored the fifteen interrogatories that were previously answered by Defendant. Of the twenty-seven questions, Defendant objected to every question except twelve and twenty-seven."

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First, this statement is misleading because the defendant, without waiving the stated objections, also responded to the questions. Second, there is no recognized concept in Federal Civil Procedure that permits counsel to argue that a response to a letter request which "mirrored", "arose out of" or "broke down" a prior formal discovery request can result in sanctions when the party responds to the questions asked in the letter. October 4, 2004 Interrogatory #7. On September 2, 2005, plaintiff counsel stated: Number 7 is the affirmative action plan. Again no objection to this. No objection. Then we're asked ­ then the answer is they don't have to comply with federal law. Well, that's totally false." Hearing Transcript EXHIBIT 29 page 17, lines 7-10. This statement in incorrect. In fact, the defendant stated: 10/03/04 INTERROGATORY NO.7: During the period since May 1, 1994 through the date of your response, have any affirmative action plans, upward mobility plans, or other similar policies existed that have applied to you? If your answer is "yes," please identify who maintains authority over implementation of such plans or policies and produce copies of each such affirmative action plan, upward mobility plan, or policy and all related documents including but not limited to the following: [emphasis added] (a) All target position under such plan (b) List applicants that applied by race © List applicants selected by race ANSWER: No. However, the Department of Veteran's Affairs and the Carl T. Hayden VAMC does have general requirements that its operations comply with applicable federal employment laws. The phrase "applied to you" suggests that either the EEOC or a federal court has

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24 imposed (applied to you) an affirmative action plan on the CTHVAMC. Grahek v. City of 25 St. Paul, 84 F.3d 296,299 (1996)(Affirmative action plan imposed by a federal court order 26 that gave preference to minority officers in selection for promotion.);;Donaghy v. City of 27 28 14

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1 Omaha, 933 F.2d 1448, 1459 (1991)(An affirmative action consent decree stands 2 3 4 5 6

somewhere in between a voluntary affirmative action program and a remedial plan that a court has imposed after making a formal finding of intentional discrimination.). Compare defendant's answers to the April 12, 2005, Requests #17 and 18. Furthermore, the defendant did raise the self-critical analysis objection to the

7 October 4, 2004 Request for Production # 17. In sum, defendant provided appropriate 8 responses to both plaintiff's formal and informal discovery requests. 9 10 11

CONCLUSION For all the above reasons, defendant submits that the imposition of sanctions would not be appropriate under the circumstances of this discovery dispute.

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Respectfully submitted this 28th day of October 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE

I hereby certify that on October 28, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 21 Notice of Electronic Filing to the following CM/ECF registrants:
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Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 s/ John R. Mayfield

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1 Office of the U.S. Attorney 2

I hereby certify that on October 28, 2005, I served the attached document by mail, Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona s/ John R. Mayfield

3 on the following, who are not registered participants of the CM/ECF System: 4 5 6 7 8 Office of the U.S. Attorney 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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