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THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ BLUE LAKE FOREST PRODUCTS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) __________________________________________ TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant ) __________________________________________) CLR TIMBER HOLDINGS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 01-570C (Judge Williams)
No. 01-627C (Judge Williams)
No. 04-501C (Judge Williams)
PLAINTIFFS' NOTICE OF SUBSEQUENT EVENTS BEARING ON DEFENDANT'S SUBJECT MATTER WAIVER OF THE ATTORNEY-CLIENT PRIVELEGE
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INTRODUCTION In each of the cases in this consolidated action, plaintiff's timber sale was suspended for a substantial period of time, in whole or in part, in order to allow the United States Forest Service ("Forest Service") time to conduct certain wildlife and plant surveys which were required by law to have been conducted prior to the award of these sales but which were not performed prior to award. A core issue in each plaintiff's breach of contract claim in this action is whether the Forest Service breached its duties to cooperate and not to hinder plaintiffs' performance of their timber sale contracts by arbitrarily and capriciously failing to conduct the required surveys prior to award. In Oregon Natural Resources Council Action, et al. v. United States Forest Service, 59 F. Supp.2d 1085 (W.D.Wa. 1999) ("ONRC Action"), the district court determined that the Forest Service acted arbitrarily, capriciously and contrary to law in failing to conduct these surveys. Nonetheless, the government has asserted that the Forest Service acted reasonably in deciding to award these timber sales without conducting the surveys. In this context, what the Forest Service knew or should have known regarding its legal obligation to perform the required surveys is relevant. Accordingly, the actions and statements of the Department of Justice and agency lawyers advising the Forest Service on whether it should or should not conduct the surveys prior to award and related matters is directly relevant to this case.
Several other cases pending before this Court also involve the suspension of timber sales by the Forest Service for this same reason and the same assertions of reasonableness by the government. See Zip-O-Log Mills, Inc. v. United States, COFC No. 04-1123C (J. Williams); Scott Timber Co. v. United States, COFC No. 05-708C (J. Lettow); Swanson Group, Inc. v. United States, COFC No. 05-179C (J. Wheeler). In the course of recent discovery in these cases 2
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the government has voluntarily produced several documents involving attorney-client communications and/or attorney advice to the Forest Service involving matters directly related to the ONRC Action plaintiffs' challenge to timber sales based on the Forest Service's failure to conduct the required wildlife and plant surveys before award. Most of these documents were the subject of recent deposition testimony by Susan M. Zike, a Forest Service attorney for "FOIA & Litigation." See page 1 of Deposition Exhibit 35A attached hereto. Plaintiffs submit that these documents and Ms. Zike's deposition testimony constitute further evidence of the government's subject matter waiver of its attorney-client privilege claims in this action. Each of these documents is discussed briefly below and copies of these documents and Ms. Zike's deposition transcript are attached as the Appendix to this filing.
PROCEDURAL HISTORY This discovery dispute formally began with plaintiffs' January 9, 2004 Motion to Compel and for Sanctions. Since that time, numerous orders of this Court have slowly reduced, but not eliminated, the issues in contention. The Court's first substantive order in the dispute came on June 18, 2004, in which the Court granted plaintiffs' motion to compel in part. That order required the government, inter alia, to finalize its claims of privilege on all documents and allowed plaintiffs to file a revised motion to compel.
Pursuant to the Court's Order, plaintiffs filed their Revised Motion to Compel on September 15, 2004. Plaintiffs asserted, inter alia, that the government's disclosure of ten documents constituted a subject matter waiver of its attorney-client privilege and that the government's "reasonableness" and "assumption of the risk" arguments constituted an at-issue 3
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waiver of privilege. Plaintiffs also challenged the government's claims of "settlement privilege." During a status conference on December 3, 2004, the Court ruled in plaintiffs' favor regarding the at-issue waiver as to attorney-client privilege documents and ordered further briefing as to work product documents. The Court also ruled that government could not assert a "settlement privilege." The Court did not rule on the at-issue waiver as to deliberative process documents nor the issue of subject matter waiver. The government has subsequently produced documents it previously withheld solely on claims of a "settlement privilege."
On June 28, 2005, the Court ordered that the government's disclosure of the "Brouha Memorandum" constituted a subject matter waiver of the attorney-client privilege at least as to that document, and the "Brouha Memorandum" was produced by the government. The Court further ordered the parties to file supplemental briefs on the scope of the government's subject matter waiver beyond the "Brouha Memorandum." Prior to the Court's ruling on the scope issue, however, the government reversed its original position and argued that the "Brouha Memorandum" was not privileged. By Orders of September 1, 2005 and October 11, 2005, the Court required the government to submit affidavits and plaintiffs to submit further briefing on the issue of the scope of the government's subject matter waiver, respectively. Those briefs were subsequently filed with the Court.
Plaintiffs' Revised Motion to Compel has been pending before the Court since September 15, 2004. As the parties stated in their Joint Status Report of November 23, 2005, they agree that all matters necessary for the Court to issue its opinion and order on the unresolved privilege claims that are the subject of plaintiffs' motion have been completed. The parties have not been 4
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able to finalize pre-trial discovery or make other progress in this case in the absence of the Court's final opinion and ruling on plaintiffs' revised motion to compel.
DESCRIPTION OF DOCUMENTS FURTHER SUPPORTING THE DEFENDANT'S SUBJECT MATTER WAIVER OF THE ATTORNEY-CLIENT PRIVELEGE Each of the following documents was produced by the government in one or more of the Court of Federal Claims cases identified above. These documents were also marked as deposition exhibits and were the subject of testimony at the depositions of Ms. Zike and Cheryl McCaffrey (a Bureau of Land Management employee who worked on Survey and Manage issues with Forest Service personnel)1 in early January 2007 in Scott Timber Co. v. United States, COFC No. 05-708C. A complete copy of Ms. Zike's deposition transcript is included in the Appendix to this filing. The government did not object to the use of these documents in this deposition nor to the questions asked of attorney Zike or Ms. McCaffery about these documents. (Government counsel, however, objected and instructed Ms. Zike not to answer plaintiffs' counsel's question as to whether the Department of Justice or the Forest Service made the ultimate decision to award Forest Service timber sales challenged by the ONRC Action plaintiffs, but this limited objection and instruction (and in plaintiffs' view, unjustified objection and instruction) (Zike Dep. 38) did not apply to any documents or other deposition testimony which are the subject of this Notice.)
Only one document, Deposition Ex. 31 was a subject of Cheryl McCaffery's deposition. See discussion infra. 5
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ADDITIONAL SUBJECT MATTER WAIVER DOCUMENTS 1. Deposition Exhibit 31. A fax cover sheet message and draft report for proposed
changes to the Survey and Manage Standards and Guidelines, Component 2 implementation schedule under the Northwest Forest Plan from Cheryl McCaffery sent for review and approval to Ellen Athas, an attorney working for the President's Council on Environmental Quality, and "Ted Bowling" [sic] lead attorney for the Department of Justice in the ONRC Action litigation, among other recipients, dated May 18, 1998. This document was the subject of deposition testimony by Cheryl McCaffery on January 10, 2007.
2.
Deposition Exhibit 35A. This exhibit includes a fax cover sheet from attorney
Zike with a message reading in pertinent part: Attached is draft DOJ ltr to plaintiff's atty. Note last sentence of let ¶ on 2nd page. Are you willing to notify the bidders before you open bids? UMP [Umpqua National Forest] and WIL [Willamette National Forest] say yes. Need to hear from GIP [Jack Gipsman, Forest Service attorney]. There is no reason YET to plan on delaying award of the USFS sales. We'll know more after the 8/17 meeting between DOJ and ONRC Attys. This exhibit also includes a draft letter from counsel of record Edward Boling in the ONRC Action litigation to ONRC Action counsel of record Michael Axline with a list of Forest Service sales apparently challenged by ONRC Action including the Jack Heli sale at issue in this action. Plaintiffs' Deposition Exhibit 35A also includes a legal memorandum from Robert M. Simmons, Regional attorney for the Forest Service in Region 5, to the Region 5 and Region 6 Regional Foresters advising them that if the Forest Service proceeds with the sale by auction of the sales that the ONRC Action plaintiffs identified to have violated the Northwest Forest Plan, the Forest Service should "notify all purchasers prior to the opening of the bids that the plaintiffs in this
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lawsuit have identified the sale and have contended that the Forest Service has violated the Northwest Forest Plan in preparing the sale." (See page 6 of Deposition Exhibit 35A, page numbered SCOTT 1100030.)
3.
Deposition Exhibit 35B. A DOJ fax cover sheet from Ted Boling (counsel of
record for the United States in the ONRC Action litigation) to Susan Zike dated August 27, 1998, attaching a letter from ONRC Action lead counsel Michael Axline to Edward Boling further attaching a list of timber sales that the ONRC Action plaintiffs believed did not comply with the Northwest Forest Plan because the required wildlife and plant surveys had not been performed. The list includes a "Jack" timber sale on the Klamath National Forest, among many others. The Jack Heli timber sale is at issue in this case.
4.
Deposition Exhibit 41A. Two emails from Susan Zike to various individuals in
the Forest Service, including Owen Schmidt, an attorney representing the Forest Service, and Ted Boling, counsel of record in the ONRC Action case, regarding Forest Service actions taken with respect to the Happy Thin timber sale which is involved in the instant action, among other sales, and discussing advice and communications from the Department of Justice and Forest Service attorneys in the Office of General Counsel at the Department of Agriculture concerning how to handle timber sales challenged by the ONRC Action plaintiffs.
5.
Deposition Exhibit 41D. A memorandum from Susan Zike to Brenda Woodard,
Forest Service Contracting Officer, in which Ms. Zike conveys legal advice to Ms. Woodard which was given by Ted Boling, counsel of record representing the government in the ONRC 7
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Action litigation. The advice concerns how the Forest Service should handle certain categories of timber sales with respect to "at risk" concerns.
Plaintiffs submit that the defendant has waived any attorney-client privilege claims with respect to the deposition exhibits described above and the deposition testimony of Ms. Zike (except at Zike Dep. 38) and Ms. McCaffery. By voluntarily producing these documents and allowing deposition testimony regarding those exhibits and related subjects with out objecting, defendant's actions further support a finding of subject matter waiver of any attorney-client privilege regarding the government's actions in response to the ONRC Action plaintiffs' challenges to Forest Service timber sales, including those at issue in this action.
Plaintiffs urge the Court to take this additional filing into consideration and respectfully request that the Court issue a final opinion and order on all outstanding issues relating to plaintiffs' Revised Motion to Compel as soon as possible so that this action may proceed through the completion of pre-trial discovery.
Respectfully submitted,
s/Gary G. Stevens SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Counsel for Plaintiffs OF COUNSEL: 8
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Eric J. Pohlner SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Dated: February 7, 2007
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Free Notice (Other) - District Court of Federal Claims - federal
| File Size: | 10,361.3 kB |
| Pages: | 85 |
| Date: | September 10, 2008 |
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