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

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No. 01-495C (Senior Judge Bruggink)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

KENT CHRISTOFFERSON, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

DEFENDANT'S MOTION TO COMPEL NOTES OF RESPONSES TO QUESTIONNAIRES

GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director STEVEN J. GILLINGHAM Assistant Director Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Attorneys for Defendant July 15, 2008

OF COUNSEL: RAYNA ELLER Office of the General Counsel Bureau of the Census Suitland, MD 20746-24

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TABLE OF CONTENTS PAGE DEFENDANT'S MOTION TO COMPEL PRODUCTION OF NOTES OF RESPONSES TO QUESTIONNAIRES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. II. Defendant Has A Legitimate Need For Source Documents . . . . . . . . . . . . . . . . . 8 Plaintiffs Cannot Show that the Notes of Conversations Between Plaintiffs and Their Attorneys Or Subordinates Are Protected By the Attorney-Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The Notes Of Conversations Regarding Changes To the Questionnaire Responses Are Not Attorney Work Product . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Plaintiffs Have Waived Any Applicable Privilege . . . . . . . . . . . . . . . . . . . . . . . 13 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III.

IV. V.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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INDEX TO THE EXHIBITS Tape Transcription of June 17, 2008 Status Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Notice of Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Communication Between Plaintiff and Attorney Regarding Packet Sent to Plaintiff, dated August 1, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Transcript of November 1, 2006 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Joint Status Report submitted by Plaintiff, dated December 4, 2006 . . . . . . . . . . . . . . . . . . . . . . 5 Plaintiffs' Sample Spreadsheet Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Carla Smith Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ashley Smart Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Doris McAfee Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Shunell Kiper Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Steven Graham Claim Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Richard Lawler Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Letter, dated April 22, 2008, from Plaintiff's Attorney to Steven Gillingham . . . . . . . . . . . . . . 13 Privilege Log of All Clients, dated February 13, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Tamber Simonson Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Tamber Simonson Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Cindy Leung Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Cindy Leung Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Rachel Muhammad Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Rachel Muhammad Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Jeffrey Smith Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Jeffrey Smith Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Maureen Worrell Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Maureen Worrell Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Edmond Slatus Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Edmond Slatus Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Carmen Worden Claim Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Carmen Worden Spreadsheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TABLE OF AUTHORITIES CASES PAGE(S)

AAB Joint Venture v. United States, 75 Fed. Cl. 448 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Cabot v. United States, 35 Fed. Cl. 442 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Cendant Corp. Sec. Litig., 343 F.3d 658 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Christofferson v. U.S., No. 01-495C (Fed. Cl. Oct. 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146 (D.C.S.C. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re EchoStar Commc'ns Corp., 448 F.3d 1294 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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First Federal Sav. Bank of Hegewisch v. United States, 55 Fed. Cl. 263 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Fisher v. United States, 425 U.S. 391 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Grand Jury Proceedings October 12, 1995, 78 F.3d 251 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hickman v. Taylor, 329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Iron Workers Local Union No. 17 Ins. Fund v. Philip Morris, 35 F.Supp.2d 582 (N.D. Ohio 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pac. Gas & Elec. Co. v. United States, 69 Fed. Cl. 784 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Trollinger v. Tyson Foods, Inc., 2007 WL 951869 (E.D. Tenn. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Collis, 128 F.3d 313 (6th Cir.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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United States v. Tellier, 255 F.2d 441 (2d Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Workman, 138 F.3d 1261 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Upjohn Co. v. United States, 449 U.S. 383 (198) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS KENT CHRISTOFFERSON, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 01-495C (Senior Judge Bruggink)

DEFENDANT'S MOTION TO COMPEL PRODUCTION OF NOTES OF RESPONSES TO QUESTIONNAIRES Defendant, the United States, respectfully requests that the Court compel the production of notes taken by plaintiffs' attorneys of conversations in which plaintiffs communicated answers or changes to answers to their questionnaire responses. These questionnaire already had been signed under penalty of perjury and returned to their attorneys for submission to the Government. The Government is entitled to all versions of plaintiffs' responses to the questionnaires, including those contained in attorney-made notes. STATEMENT OF THE ISSUE Whether notes made by plaintiffs' counsel of their conversations with plaintiffs, relating either to changes, additions or deletions made by plaintiffs' counsel to plaintiffs' questionnaire responses, are protected from disclosure. STATEMENT OF THE CASE On February 18, 2005, in an attempt to resolve this case as expeditiously as possible, the parties entered into a Memorandum of Understanding (MOU), which provided, in part, that the then approximately 7,800 plaintiffs would complete a written questionnaire concerning the merits of their claims, under oath. See Christofferson v. U.S., No. 01-495C, slip op. at 2 (Fed.

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Cl. Oct. 25, 2007). The questionnaires sought information relevant to liability and the existence and quantification of claimed back pay. Id. The specific questions ­ including their specific wording ­ were negotiated by the parties' counsel for more than a year. Id. As part of that effort, counsel for both parties consulted survey experts to ensure the wording was readily understandable by its intended audience. Def. Ex. 1 at 15. The resultant questionnaire notified plaintiffs that if they had questions concerning how to complete the form, they should contact their attorneys, and the questionnaires prominently displayed counsel's address and telephone number. Def. Ex. 2 at 1. The questionnaire was sent to the plaintiffs by their counsel, under cover of a letter dated August 1, 2006, which offered plaintiffs' counsels' assistance and provided their contact information. Def. Ex. 3. The questionnaires informed plaintiffs that they were required to submit their responses by September 29, 2006. Def. Ex. 2. at 2. However, plaintiffs were allowed extensions of time upon request. Def. Ex. 4 at 6-7. The final deadline for submitting completed forms was November 30, 2006. Def. Ex. 5. Thereafter, on February 20, 2007, instead of providing the actual questionnaire responses to defendant, plaintiffs sent defendant an Excel spreadsheet, which purported to contain a summary of the information plaintiffs provided to the questionnaire. Christofferson, slip op., at 4. With respect to questions calling for a yes, no, or numerical response (such as the number of overtime hours claimed), the spreadsheet contained "yes" or "no" or a number.1 Def. Ex. 6. To the key question concerning the basis for concluding the Government knew about the claimed

In some cases, the spread sheet reported a number of regular, i.e., non overtime hours claimed, although the questionnaire called for no such number. -2-

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overtime, a question that called for a narrative response, plaintiffs' attorneys created six categories ­ developed without discussion with defendant. Rather than report plaintiffs' narrative responses to these questions, the spreadsheet included a number corresponding with the purported categories. Id During this process of translating the actual questionnaires to the spreadsheet, plaintiffs' attorneys entered into the spreadsheet many answers. supplied by claimants, over the telephone, that were different than those supplied by claimants in the questionnaires. Plaintiffs' attorneys also entered answers into the spreadsheet where the original questionnaire response was incomplete. Def. Ex. 1 at 7-8. Nowhere did plaintiffs indicate that the information on the spreadsheet originated from telephone conversations and not from the questionnaire responses; nor did plaintiffs indicate that questionnaire responses had been changed after being prepared and sworn to by the claimants themselves. Def. Ex. 6. After receiving the spreadsheet and not the questionnaires themselves, defendant asserted its right to the questionnaires. Plaintiffs then moved for a protective order, arguing that the actual, verbatim responses to the questionnaires were protected by the attorney-client privilege and work-product doctrine. See Christofferson, slip op. Defendant opposed this motion and, on October, 25, 2007, the Court ordered production of the actual questionnaire responses, ruling that the questionnaire responses were not privileged. Id. at 11-13. In November 2007, defendant's attorneys traveled to plaintiffs' counsels' offices in San Francisco, California, to review the questionnaire responses, of which there were only 1,836, and, in December, arranged for their copying. Defendant's Status Report, March 11, 2008. On January 4, 2008, Defendant's attorneys received the copies and began their review. Id.

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Defendant's review revealed that plaintiffs' attorneys had changed questionnaire answers and filled in blanks for others. Def. Ex. 1 at 16-17. Plaintiff's counsel has acknowledged that his staff changed answers to the critical question of whether a plaintiff believed his or her supervisor knew or should have known of the claimed overtime "quite often." Def. Ex. 1 at 11. Plaintiff's counsel has estimated that another third of the plaintiffs had problems estimating the amount of damages they claimed. Id. Affected by the changes are numerous questionnaire forms containing the notation "See phone log," often accompanied by a name or initials that differed from those of the plaintiff who signed the questionnaire response under penalty of perjury. For example, plaintiff Carla Smith marked that her supervisor did not know about the overtime claimed prior to working the overtime. Def. Ex. 7. Her response was changed from "no" to "yes," the change was initialed by "MD" and bore the notation "per phone conversation w/client on 12/11/06." Id. Similarly, plaintiff Ashley Smart marked that her supervisor did not know about the overtime and her response was changed with a notation "per phone conversation." Def. Ex. 8. Plaintiff Doris McAfee failed to answer Question No. 16, which asks whether her supervisor knew or had reason to know that she had worked the claimed overtime prior to her working it. Def. Ex. 9. However, the answer "yes" has been circled with the note "per phone conf w/Molly D 11/9/06." The only explanation provided is "see phone log." Id. Many other questionnaires contained two columns of numbers in two different handwriting styles on the page requesting the weekly number of overtime hours worked. For instance, the questionnaire for Shunell Kiper contains the notation "per phone conversation," written next to a column of hours, which were recorded next to those initially supplied by

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plaintiff. Def. Ex. 10. No explanation concerning the telephone conversation itself or the reason for the change is provided. Further, plaintiff Kiper indicated that the hours claimed were not based upon estimates, yet his attorney, apparently, has entered "yes, see phone log" (indicating the contrary). Id. There also are questionnaires on which plaintiffs failed to specify the number of hours of overtime claimed, but someone from his attorneys' office filled in the hours, apparently based upon a phone conversation. For instance, plaintiff Steven Graham did not specify the number of hours claimed. Def. Ex. 11. Instead, there is a notation made by someone else indicating that the claimed hours were filled out based upon a phone conversation. Id. The form provides no further explanation or documentation for the hours claimed nor is there a description of the telephone conversation. In one instance, the plaintiff (Richard Lawler) indicated that he was no longer interested in pursuing his claim, yet his attorneys' office changed that answer. Def. Ex. 12. However, there is a note by plaintiffs' counsel stating "does want to continue per phone." Id. The rest of the claim form was left blank by the plaintiff, clearly supporting his intention to withdraw his claim.2 When defendant's attorneys sought the phone log, plaintiffs asserted it was privileged. When defendant requested a privilege log, plaintiffs sent defendant a list of 4,000 names, stating plaintiffs' attorneys had conversations with all of them between August 2, 2006 and February 20, 2007. Def. Ex. 14. The privilege log did not specify for any individual plaintiff the dates of

When defendant alerted plaintiffs' attorneys to these deficiencies in a letter dated April 14, 2008, the response was a brief in letter form, dated April 22, 2008, reiterating arguments that had been made in previous unsuccessful filings with the court (see Def. Ex.13.) -5-

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conversations, the subject matter of the conversations, the identity of the attorney or the subordinate with whom the conversation occurred, or any other information relevant to a determination of privilege. Id. Also problematic is the Excel spreadsheet, which plaintiff refers to as a "database." It contains many responses that are inconsistent with those that were provided by the plaintiffs on their claims forms. For example, plaintiff Tamber Simonson provided no narrative answers on the questionnaire in response to Question Nos. 13 and 17, but asserted that the hours claimed were not based upon estimates. Def. Ex. 15. However, the spreadsheet asserts that the hours claimed are estimates, based upon memory. Def. Ex. 16, Cols 4 and 5 (corresponds with questions 13 and 13a on Exhibit 6). The spreadsheet also shows that plaintiff's supervisor asked plaintiff to work overtime, although plaintiff did not provide this explanation on the claim form. Id.; Def. Ex. 15. Similarly, on her questionnaire, plaintiff Cindy Leung stated that her supervisor was not aware of her working overtime prior to her doing so. Def. Ex. 17. Yet, the spreadsheet indicates that Ms. Leung believed her supervisor did know, because her supervisor rejected her time sheets with overtime. Def. Ex. 18 (Column 17, corresponding with question 16e on Exh. 6). Likewise, plaintiff Rachel Muhammad left questions 16 blank (the supervisory knowledge question), and provided no response to question 17, which asks for the factual basis for a claim of supervisory knowledge. Def. Ex. 19. Yet on the spreadsheet, the attorneys entered "True" under 16a and

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16f, which, according to the key, means that her supervisor told her to work overtime and told her to roll over hours.3 Def. Ex. 20 (columns 14 and 19). The spreadsheet also is defective in that it incorrectly records plaintiffs' claims for overtime hours. For example, on his questionnaire, plaintiff Jeffrey Smith appears to be claiming exactly the same hours for which he already received overtime: he was paid for 54 hours, 49.5 hours and 56.5 hours and claims 14, 9.5, and 16.5 hours of overtime, the precise difference between 40 hours and the total number of hours he claims to have worked. Def. Ex. 21. Yet the spreadsheet shows claims for 7, 4.75, and 8.25 hours of overtime, exactly half the amount that plaintiff claims on his questionnaire. Def. Ex. 22 (column 8). Similarly, plaintiff Maureen Worrell claims 12 overtime hours for the week of May 27 on her questionnaire, but the spreadsheet reflects a 14-hour claim for that week. Def. Exs. 23-24 (column 8). Plaintiff Edmond Slatus's questionnaire claims only rollover hours (hours for which he was paid straighttime, not time and one-half), but the spreadsheet reflects overtime hours claimed. Def. Exs. 2526 (column 8). Finally, Plaintiff Carmen Worden claimed no overtime hours for the week of April 29, but the spreadsheet reflects a claim of five hours of overtime. Def. Exs. 27-28 (column 8). At the telephonic status conference held on June 17, 2008, plaintiffs' counsel represented that these discrepancies are authorized changes to the questionnaire responses, yet nothing on the questionnaires themselves indicates they are changes. Def. Ex. 1 at 10. Thus, we understand plaintiff's position to be that: when there is a blank on the questionnaire, defendant should accept

"Rolling over" refers to recording hours on a day when the employee works fewer than eight hours. -7-

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the corresponding spreadsheet entry as evidence (Def. Ex 1 at 14-15); and when the questionnaire differs from the spreadsheet, even though nothing on the questionnaire indicates that a change has been made, defendant also should accept the spreadsheet entry as evidence. Def. Ex. 1 at 7-8. ARGUMENT I. Defendant Has A Legitimate Need For Source Documents As the Court has recognized, questionnaire responses are the center piece of the MOU, which established the procedural regimen this case has followed for years. Plaintiffs suggest, however, that their attorneys' summary of questionnaire responses is sufficient. However, we cannot assess these claims upon the basis of some of the evidence and plaintiffs' attorneys' interpretation of the rest.4 Indeed, as chronicled above, the spreadsheet is rife with errors and, consequently, is the proof of its own inadequacy. We negotiated for over one year to obtain the specific questionnaire responses at issue -- and, in our recent review, have considered those responses, signed under penalty of perjury, to be the source of plaintiffs' claims. Nonetheless, we did not attempt to compare each questionnaire response with the spreadsheet and we should not now, after months of review, be required to re-review the 1,836 responses extant to

For one thing, telephonic answers used to fill in blanks in certified questionnaire responses do not satisfy the plaintiffs' MOU obligation to provide completed questionnaires signed under penalty of perjury. Certainly, information that was entered onto a spreadsheet after a questionnaire response had been received and which cannot even be authenticated cannot be accepted. Therefore, it is defendant's position that any information on the spreadsheet that differs from that on the questionnaire responses, and for which plaintiffs have no record of a communication with the plaintiffs about the change, should be disregarded. Also, the claims of plaintiffs who submitted incomplete questionnaire responses cannot be cured by means of the spreadsheet and should be dismissed. -8-

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determine which ones plaintiffs have changed without notice or explanation. As the Court explained in its earlier decision in this case: Plaintiffs' attempt to categorize and summarize the various narrative responses leaves the government with something less than what it reasonably expected to learn. By agreeing to the settlement procedures in the MOU and thereby forgoing additional discovery, defendant is entitled to at least know how each claimant responded to the jointly drafted questions. Christofferson, slip. op. at 11. Moreover, if there are discrepancies among the answers on the questionnaires, the spreadsheet and the notes, we are entitled to know that and to ask for an explanation. Likewise, we are entitled to know the dates these changes were made, and if they were made after the deadline of November 30, 2006, to assess whether the plaintiffs satisfied the requirement to return a completed questionnaire by that date.5 Plaintiffs also suggest we cure these defects by simply taking depositions. However, having adulterated hundreds of questionnaires, it is not for plaintiff to say that defendant should engage in costly and time-consuming depositions ­ especially while the specter of plaintiffs' attorney fee claim looms. All plaintiffs' attorneys need do is disclose the source for answers that were added or changed after the original responses were verified, and allow us to determine for ourselves whether plaintiffs' attorneys have accurately recorded the responses and determine for ourselves what weight, if any, to afford the changed responses. As the Court held in its prior attorney-client decision, equity favors disclosing this information to defendant, which has in good faith negotiated a procedure to obtain reliable

For example, the change to Carla Smith's claims form was made on December 11, 2006 (Def. Ex. 7), after the final deadline for submitting verified forms. -9-

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information to resolve this case without having to depose every plaintiff. Christofferson, slip. op. at 10-11. II. Plaintiffs Cannot Show that the Notes of Conversations Between Plaintiffs and Their Attorneys Or Subordinates Are Protected By the Attorney-Client Privilege The attorney-client privilege protects communications made in confidence by clients to their lawyers for the purpose of obtaining legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389 (198); In re EchoStar Commc'ns Corp., 448 F.3d 1294, 1300 (Fed. Cir. 2006); AAB Joint Venture v. United States, 75 Fed. Cl. 448, 456 (2007). The privilege applies only if: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication related to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding . . . ; and (4) the privilege has been (a) claimed and (b) not waived by the client. AAB Joint Venture, 75 Fed. Cl at 456 (citing Energy Capital Corp. V. United States, 45 Fed. Cl. 481, 484-85 (2000)) (omissions in the original); accord Pac. Gas & Elec. Co. v. United States, 69 Fed. Cl. 784, 810 (2006). Moreover, communications between an attorney and his client are not privileged if it was understood that the information communicated in the conversation was to be conveyed to others. Duplan Corp. v. Deering Milliken, Inc. 397 F. Supp. 1146, (D.C.S.C. 1975) (citing United States v. Tellier, 255 F.2d 441 (2d Cir. 1958)). "[B]ecause the assertion of attorney-client privilege withholds relevant information to the fact finder, it is narrowly construed, and applied only where necessary to achieve its purpose of protecting client communications essential to obtain legal advice." Trollinger v. Tyson Foods, Inc. 2007 WL 951869, *1 (E.D. Tenn. 2007) (citing

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Fisher v. United States, 425 U.S. 391, 403 (1976)); accord In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (the attorney-client privilege must be narrowly construed because it comes with substantial costs and stands as an obstacle to the search for truth); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965). The party seeking to assert the privilege has the burden of establishing its applicability. AAB Joint Venture, 75 Fed. Cl. at 456; First Federal Sav. Bank of Hegewisch v. United States, 55 Fed. Cl. 263, 277 (2003); Cabot v. United States, 35 Fed. Cl. 442, 444 (1996). Here, the Court already has ruled that a communication disclosed as a response to the questionnaire is not subject to the attorney-client privilege. Christofferson, slip op. at 10-11. As the Court explained, the questions, which were drafted jointly, did not seek legal advice, and plaintiffs were aware that their responses would be shared with the Department of Justice. Id. at 9-10. The same reasoning applies to the responses contained in the notes, which apparently contain responses to the very same questions, intended to be included in the very same questionnaires, but conveyed in the first instance by telephone. Accordingly, defendant should be allowed to check the source of these answers, just as it was entitled to see the original questionnaire responses. Plaintiffs' attorney has suggested, without demonstrating, that the reason plaintiffs could not furnish these answers in writing was because of the pressure of the impending deadline. Def. Ex. 1 at 5. But if plaintiffs submitted their answer by phone for that purpose alone, they are in no different position with regard to their expectations of confidentiality, than if they had submitted their answers in writing. Indeed, by referencing the phone log on the questionnaire

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responses, plaintiffs' attorneys have explicitly incorporated their conversations into the responses. III. The Notes Of Conversations Regarding Changes To the Questionnaire Responses Are Not Attorney Work Product The work product doctrine is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal strategy "with an eye toward litigation," free from unnecessary intrusion by adversaries. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). "Core" or "opinion" work product that encompasses the mental impressions, conclusions, opinion or legal theories of an attorney or other representative of a party concerning the litigation is "generally afforded near absolute protection." In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003) (citations omitted). However, like attorney-client privilege, the work product privilege does not protect facts contained within or underlying the attorney work product. In re Unilin Decor N.V., 153 Fed. Appx. 726, 728 (Fed. Cir.2005); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.1995). As the Court held in its October 2007 decision, the answers to the questionnaires are not work product because there was no expectation that they would be kept private. Christofferson, slip. op. at 13. The questionnaires were jointly prepared, with the expectation that the answers would be shared and could be used for settlement. Moreover, plaintiffs have not demonstrated that the notes even contain work product. Indeed, as plaintiffs describe them, the notes contain raw data regarding the answers supplied by plaintiffs during telephone conversations. Such factual recitations are not work product.6 If anything is, it is the spreadsheet that is work

As we argued in our opposition to the withholding of the questionnaires, by continuing to invoke the privileges the way they have, plaintiffs suggest the questionnaires were designed for counsel to investigate the claims. But, we are well beyond investigation that stage. Now, plaintiffs must disclose the evidentiary basis for their presumably already-verified claims. - 12 -

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product; yet plaintiffs have disclosed that, leaving them with no legitimate complaint that their attorneys' mental impressions are at issue. IV. Plaintiffs Have Waived Any Applicable Privilege Plaintiffs already have disclosed parts of their telephone conversations with their attorneys ­ in the answers their attorneys changed for them and the blank answers their attorneys completed for them, both on the questionnaires and on the spreadsheet. But, plaintiffs cannot selectively disclose that which suits them and that which does not. See Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) ("The principle is often expressed in terms of preventing a party from using the privilege as both a shield and a sword."; Nguyen v. Excel Corp., 197 F.3d 200, 207 n. 18 (5th Cir. 1999) ("In accord with this principle is a client's inability to, at once, employ the privilege as both a sword and a shield. . . Attempts at such improper dual usage of the privilege result in waiver by implication."); United States v. Workman, 138 F.3d 1261, 1264 (8th Cir. 1998) ("The attorney client privilege cannot be used both as a shield and a sword."); United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) ("However, the attorney-client privilege cannot at once be used as a shield and a sword."). For these reasons, courts may except even privileged documents, if it appears that a party has disclosed only a portion of certain privileged communications to obtain a tactical advantage, while claiming a privilege over other confidential materials that are disadvantageous to their case. This "same subject matter" rule enables a court to "deprivilege" documents that have not been initially disclosed, but that otherwise relate to the same subject matter of the litigation. Iron Workers Local Union No. 17 Ins. Fund v. Philip Morris, 35 F.Supp.2d 582, 596 (N.D. Ohio 1999) (citing In re Grand Jury Proceedings October 12, 1995, 78 F.3d 251, 255 (6th Cir. 1996));

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see also United States v. Collis, 128 F.3d 313, 320 (6th Cir.1997); In re Sealed Case, 877 F.2d 976, 981 (D.C. Cir. 1989). For just this reason, plaintiffs cannot disclose those parts of the conversations with their attorneys that will benefit them while concealing the rest. The prejudice is plain. Had plaintiffs succeeded in their motion to withhold the actual questionnaire responses, we never would have discovered the discrepancies between the questionnaire responses and the spreadsheet ­ or the sheer volume of answers that were furnished after the questionnaires had been submitted. Similarly, without the notes, we never will know the authenticity of the spreadsheet entries or be able to assess the weight of the plaintiffs' responses. Plaintiffs' attorney has suggested, without proving, that the procedure was justified, because plaintiffs were confused and needed to call their attorneys. But, the questionnaires at issue were submitted after the responses were verified and submitted. There was no need for plaintiffs to submit their questionnaires until after they had contacted their attorneys, if they so required. Indeed, claimants were furnished the contact information for the attorneys and told to contact them if they had questions ­ both in the cover letter from their attorneys and in the questionnaires themselves. Moreover, they were sent the questionnaires almost two months before the artificial deadline and four months before the real deadline. Similarly, the fact that plaintiffs had difficulties remembering the amount of overtime they worked does not justify withholding documents from defendant. To the contrary, defendant is entitled to know how plaintiffs estimated their overtime, and the difficulty they experienced in doing so is a material to that issue.

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V.

Summary First, Plaintiffs attempted to withhold their actual questionnaires. Once disclosed, they

revealed changed and incomplete answers. Now, plaintiffs attempt to withhold the notes that plaintiffs themselves suggest authenticate and explain those deficiencies. However, the grounds upon which plaintiffs do so, the attorney-client privilege and work-product doctrine, are inapplicable for reasons the Court already has explained: responses to the questionnaires were intended to be disclosed and, therefore, no expectation of confidentiality attaches to them. Of equal moment are the parties' and the Court's interest in preserving the painstakinglydeveloped, intricate and already successful procedure the parties and the Court have crafted to resolve this case in a manner consistent with this Courts' prime directive: to achieve the "just, speedy, and efficient" resolution of every action. See RCFC 1. Plaintiffs' efforts to hide evidence strips that procedure of its key component: authentic evidence. This case now is seven years old. Requiring that depositions be taken concerning each of the many small claims that comprise this lawsuit, in lieu of simply turning over notes that contain plaintiffs' own assertions, ensures only that it will continue for another seven. CONCLUSION For these reasons, defendant respectfully requests that the Court order plaintiffs to produce notes of any factual representations related to the questionnaire answers.

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Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General

s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director OF COUNSEL: s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director Commercial Litigation Branch Civil Division Department of Justice 1100 L St. NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Attorneys for Defendant July 15, 2008

RAYNA ELLER Office of the General Counsel Department of Commerce Bureau of the Census Suitland MD 20746-24

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CERTIFICATE OF SERVICE I hereby certify that, on July 15, 2008, a copy of the foregoing was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Steven J. Gillingham