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

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 1 of 28

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

No. 92-580C Chief Judge Edward J. Damich

SPARTON CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

OPPOSITION OF THE UNITED STATES TO SPARTON'S MOTION TO COMPEL ANSWERS TO ITS REQUESTS FOR ADMISSIONS AND REQUESTS FOR PRODUCTION OF DOCUMENTS

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director GARY L. HAUSKEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0342 Facsimile: (202) 307-0345 October 20, 2006

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 2 of 28

TABLE OF CONTENTS

I. II.

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. REQUEST FOR PRODUCTION 5003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Timeliness of the Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Sufficiency of the Government's Response . . . . . . . . . . . . . . . . . . . . . . . . 5 REQUEST FOR PRODUCTION 5006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Timeliness of the Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. Sufficiency of the Government's Response . . . . . . . . . . . . . . . . . . . . . . . 11 REQUEST FOR PRODUCTION 5007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1. Timeliness of the Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. Sufficiency of the Government's Response . . . . . . . . . . . . . . . . . . . . . . . 14 REQUESTS FOR ADMISSIONS 2001-2006, 2008 AND 2009 . . . . . . . . . . . . . . . . . . 16 1. RCFC 36 Objection As to Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 2. Timeliness of Requests for Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3. The Requests Are Unduly Burdensome . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B.

C.

D.

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

i

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 3 of 28

TABLE OF AUTHORITIES CASES B.E. Meyers & Co., Inc. v. United States, 41 Fed. Cl. 729 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Capital Properties, Inc.,v. United States, 49 Fed. Cl. 607 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir.), cert. denied, 474 U.S. 946 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73 (N.D. N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Pacific Gas and Elec. Co. v. United States, 69 Fed. Cl. 784 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Shell Petroleum, Inc. v. United States, 46 Fed. Cl. 583 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 14, 19 Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530 (N.D. Ill. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Thalheim v. Eberheim, 124 F.R.D. 34 (D. Conn.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 United States v. Schwimmer, 892 F.2d 237 (2d Cir., 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES AND RULES Fed. R. Civ. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 RCFC 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 8, 11, 14, 16, 21 RCFC 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RCFC 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 12, 23 ii

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 4 of 28

RCFC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 17, 19, 21, 23 RCFC 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES Department of Defense Appropriations Act, 1991, Pub. L. 101-511, 104 Stat. 1856 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Proposed Trial Preparation Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

iii

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 5 of 28

TABLE OF EXHIBITS 1 Excerpt from Defendant's Responses and Objections to Plaintiff's Requests for Production of Documents Nos. 17-204, dated . . . . . . . . . . . . . . . A1 Letter from Janice Mueller, Attorney, Dep't of Justice to Robert C. Miller, Esq., Oblon, Spivak, McClelland, Maier and Meustadt, P.C., dated July 8, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A29 Letter from Steven Kreiss, Esq., to Suzanne T. Michel, Attorney, Dep't of Justice, dated November 16, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . A32 Letter from Suzanne T. Michel, Attorney, Dep't of Justice to Steven Kreiss, Esq., dated December 19, 1996 . . . . . . . . . . . . . . . . . . . . . . . . A38 Letter from Suzanne T. Michel, Attorney, Dep't of Justice to Steven Kreiss, Esq., dated April 17, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . A41 Letter from Suzanne T. Michel, Attorney, Dep't of Justice to Steven Kreiss, Esq., dated August 21, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . A43 Excerpt from the Deposition of Chuck Logar, taken by Plaintiff on August 19, 1998 at Fort Wayne, Indiana and an excerpt of Plaintiff's Exhibit 1, thereto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A47 Sparton's Answer to Interrogatory No. 5 from Sparton Corporation's Answers to the Defendant's First Set of Interrogatories to Plaintiff, Sparton Corporation, dated Sept. 28, 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . A58 Excerpt from Declaration of Ralph C. Nash, Jr. . . . . . . . . . . . . . . . . . . . . . . . A62 Excerpt from PMA-264 Strategic Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A67 Excerpt from NAVAIR Acquisition Guide . . . . . . . . . . . . . . . . . . . . . . . . . . . A73 ANA Bulletin No. 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A81 NAVAIR Supplement No. 1 to ANA Bulletin No. 445 . . . . . . . . . . . . . . . . . . A83

2

3

4

5

6

7

8

9 10 11 12 13

iv

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 6 of 28

IN THE UNITED STATES COURT OF FEDERAL CLAIMS SPARTON CORPORATION, Plaintiff, ) ) ) v. ) ) THE UNITED STATES, Defendant. ) ) Chief Judge Edward J. Damich No. 92-580

OPPOSITION OF THE UNITED STATES TO SPARTON'S MOTION TO COMPEL ANSWERS TO ITS REQUESTS FOR ADMISSIONS AND REQUESTS FOR PRODUCTION OF DOCUMENTS In Sparton Corporation's Motion to Compel Sufficient Answers to Requests for Admissions Pursuant to RCFC 36(a) and the Production of Documents Pursuant to RCFC 34(b), Docket No. 280 (hereinafter Motion to Compel), Sparton seeks an order of the Court compelling the United States to answer certain discovery requests notwithstanding the Government's objections. For the reasons stated below, the Government's objections are well-taken and the Court should not compel further answers. And, in any event, Sparton has previously contended that fact discovery closed long before the current discovery requests were served. Thus, Sparton's request are untimely. I. PROCEDURAL HISTORY On August 20, 2006, Sparton served seven requests for production (nos. 5001-5007) and nine requests for admissions (nos. 2001-2009) on the Government. Mot. to Compel, Ex. A-C.

1

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 7 of 28

Subsequently, the Government sought the deposition of James W. Widenhofer. Order, Docket No. 279 (Sept. 13, 2006) (hereinafter Order, Docket No. 279). Sparton moved to quash the deposition of Mr. Widenhofer. Id.; Sparton Corporation's Motion to Quash the Defendant's Notice of Deposition of James W. Widenhofer and Subpoena Attached Thereto Pursuant to RCFC 30 and 45, Docket No. 278 (hereinafter Motion to Quash). In that motion, Sparton argued that fact discovery had closed on January 3, 2006, and therefore any deposition of Mr. Widenhofer was improper. Id. at 2. The Court held a status conference on September 12, 2006. Order, Docket No. 279. During the conference, the Government agreed to withdraw the subpoena for Mr. Widenhofer. And, following that conference, the Court set a shortened response period, with the Government to respond to Sparton's outstanding discovery no later than September 18, 2006. The Government served its responses to the requests for admissions on September 13, 2006 (Id., Ex. C at 221) and to the requests for production on September 18, 2006 (Id., Ex. B at 11). In light of the discussions at the status conference relating to the closure of fact discovery, the Government objected to each of Sparton's discovery requests on the grounds that it was untimely. Sparton now seeks to compel answers to Requests for Production Nos. 5003, 5006 and 5007, and to Request for Admissions 2001 through 2006, 2008 and 2009 We address each of the requests, below, in the order presented by Sparton.

Sparton did not sequentially number the pages of the its appendix. For the benefit of the Court, we provide internal citations to the appendix using the page number imprints provided by the Court's Electronic Case Files system. 2

1

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 8 of 28

II.

ARGUMENT A. REQUEST FOR PRODUCTION 5003

Sparton's Request for Production No. 5003 reads as follows: All documents, other than those previously produced, relating to Magnovox'[s] AN/SSQ-53B sonobuoy, including but not limited to (a) said sonobuoy's inability to satisfy the Navy specification for that sonobuoy, (b) said sonobuoy's inability to perform satisfactorily at a 1000 foot depth, (c) Magnavox'[s] request to obtain a waiver from the Navy because said sonobuoy could not satisfy the Navy specification for said sonobuoy, (d) Magnavox'[s] obtention [sic] of a waiver from the Navy due to the performance of said sonobuoy, (e) correspondence relating to the performance of said sonobuoy, and (f) Magnavox correspondence relating to the performance of said sonobuoy. Mot. to Compel, Ex. B at 5-6. The Government objected that the request was untimely because it sought fact discovery. Id. at 6. The Government further answered that any responsive records were within those that had been provided for inspection and copying on at least two occasions. 1. Timeliness of the Request

As noted above, Sparton has previously argued that fact discovery closed on January 3, 2006. And Sparton's Request No. 5003 certainly seeks factual information. Sparton contends, however, that its request for discovery was timely submitted because it relates to expert discovery in that "defendant's expert witness McGavock considered this sonobuoy a non-infringing alternative in his calculation of lost profits[2] and a reasonable royalty in his May 2006 expert report." Mot. to Compel at 2. Sparton's argument is incorrect. The distinction between "fact discovery" and "expert discovery" finds its origin in RCFC 26. Rule 26(b)(4) precludes the deposition of expert witnesses from whom a report is required

Mr. McGavock's report does not "calculate lost profits." McGavock's opinions criticize Sparton's lost profit's argument as lacking adequate support. 3

2

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 9 of 28

until after report has issued. Further, RCFC 26(a)(2)(C) provides that, unless otherwise ordered or agreed upon, the report is to be issued no later than 70 days from the end of discovery. In this case, the Court specifically ordered the dates on which expert reports were to be issued. See Order, Docket No. 266 (Mar. 28, 2006); Order, 279. The report required by RCFC 26(a)(2)(C) and 26(b)(4) is to be a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. RCFC 26(a)(2)(C). The Court's Rules contemplate that "expert discovery" is only to insure the full disclosure of opinions, bases for those opinions and the data or information that the expert relied on to support the opinions. RCFC 26, R. Comm. Note for the 2002 Rev. (RCFC 26 amended to parallel Fed. R. Civ. P. 26); Fed. R. Civ. P. 26, R. Comm. Note to the 1993 Amend. (The requirement for a complete and detailed report from experts "may ... eliminate the need for some [expert] depositions or at least reduce the length of the depositions"); see also Shell Petroleum, Inc. v. United States, 46 Fed. Cl. 583, 584 (2000) (Damich, J.): The order differentiated between "fact discovery" and "expert discovery." The purpose of this distinction was to allow the parties to investigate, completely, all "facts" before the parties proceeded to expert discovery. During expert discovery, the parties would have an opportunity to learn about the experts' opinions, which the Court perceived as different from the facts of the case. If the experts know (or should know) all the facts before setting out their opinions in expert reports, then the opinions should not change because of the discovery of "new" facts.

4

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 10 of 28

Here, however, Sparton is not seeking Mr. McGavock's opinions, nor is it seeking evidence that formed the basis of those opinions or that he considered in rendering those opinions. Rather, Sparton seeks evidence to rebut Mr. McGavock's opinions. The proper time for seeking rebuttal evidence was during fact discovery. By Sparton's own calculation, fact discovery is now closed. Mot. to Quash at 2. Accordingly, the request is untimely. 2. Sufficiency of the Government's Response

The Government's response also answered by asserting that all document had been previously provided during one of at least two document inspections. One inspection was conducted by Mr. Kreiss at Naval Surface Warfare Center, Crane, Indiana; the other at a Navy office known as "PMA-264." Mot. to Compel, Ex. B at 7. Sparton concedes that those document inspections occurred. Mot. to Compel at 2. Nonetheless, Sparton makes three arguments in support of compelling disclosure. First, Sparton suggests that the "AN/SSQ-53B sonobuoy was not raised as an issue ... until defendant's expert witness McGavock considered this sonobuoy a noninfringing alternative." Mot. to Compel at 2. This suggestion is simply not true. In 1994, the Government responded to Sparton's third set of requests for production of documents and things. Requests Nos. 69 and 70 specifically sought inter alia copies of all sonobuoy contracts entered into between the Navy and Magnavox during the period from November 18, 1975 to June 14, 1994. Exhibit 1 at A6, A10. This request is broad enough to encompass the Magnavox AN/SSQ-53B sonobuoys. The Government responded to the request by noting that it had agreed to provide all such contracts in response to earlier requests (Nos. 67

5

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 11 of 28

and 68). Id. at A9, A13. The Navy's responses to requests Nos. 67 and 68 agrees to make its records available for inspection and copying. Id. at A21-A23, A27. Subsequently, the Navy made the documents available to Sparton's original counsel for inspection and copying at the Naval Air Warfare Center, Indianapolis3 and at the Naval Surface Warfare Center, Crane Division. Exhibit 2 at A30. After Mr. Kreiss became counsel for Sparton, he made five trips to PMA-264 to inspect documents, and an additional trip to Crane. Exhibit 4 at A39; Exhibit 5 at A42; Exhibit 6. During at least one of the trips to PMA-264, he specifically requested documents related to the Magnavox AN/SSQ-53B. Exhibit 3 at A36. In 1998, Sparton took the deposition of Chuck Logar, an employee of Magnavox. During that deposition, Mr. Kreiss specifically questioned Mr. Logar concerning the the deployment system of the Magnavox AN/SSQ-53B sonobuoy. Exhibit 7 at A53-A57. Further, the Government's Interrogatory No. 5 asked whether Sparton was asserting that the AN/SSQ-53B infringed either of the patents in suit. Exhibit 8 at A60. Sparton responded the AN/SSQ-53B was not accused of infringement. Id. Given this background, Sparton had sufficient information from which to logically deduce that it would likely be raised as a non-infringing alternative for at least some of the accused sonobuoys since the Magnavox AN/SSQ-53B did not infringe. In any event, whether the issue has been raised is not the proper question. Here, Sparton certainly had access to the requested information and was free to evaluate the facts before it. Nothing more is required.

The Indianapolis facility was closed as part of the Base Realignment and Closure (BRAC) process, and the records were moved to the Naval Surface Weapons Center, Crane, Indiana. Mr. Kreiss subsequently inspected the same records at Crane. 6

3

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 12 of 28

Sparton's interpretation of the Rules would lead to never-ending discovery. According to Sparton, whenever it had not anticipated an issue being raised, it would be entitled to re-open discovery. This time it is because Mr. McGavock utilized the available information in his expert report, but we see no reason under Sparton's reasoning why the same would not be true if information is produced during the pretrial briefing. Second, Sparton argues that during the inspections "[n]o documents were ... specifically segregated by the Navy in regard to the subject request." Mot. to Compel at 2. Sparton miscomprehends the Court's Rules. A party producing documents for inspection has two options: "A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." RCFC 34(b). Here, the Government chose the former: it produced the records "as they are kept in the usual course of business." Having done, so the burden was on Sparton to sort through the records and locate the documents. Sparton has not identified any requirement that the Government "segregate" the records. Third, Sparton contends that Sparton is entitled to discovery of two documents withheld by the Government as being privileged. Mot. to Compel at 2. Sparton cites two entries on the Government's privilege log: (i) Letter re Sparton Corp. v. United States, Court of Federal Claims No. 92-580C, from Richard T. Seeger, Patent Counsel, Magnavox Electronic Systems Co., to Janice Mueller, Attorney, Department of Justice, dated 3-8-83 (Bates No. 000151); and Letter re Sparton Corp. v. United States, Court of Federal Claims No. 92-580C, from Richard T. Seeger, Patent Counsel, Magnavox

(ii)

7

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 13 of 28

Electronic Systems Co., to Janice Mueller, Attorney, Department of Justice, re N00019-70-C-0407, dated 3-8-83 (Bates No. 010975) Mot. to Compel, Ex. E at 2, 4. Sparton asks that the Court review the documents in camera. Sparton cites no relationship to the issues raised in its motion, nor does it cite any authority for the requested in camera review. The joint-defense doctrine ­ also known as the common interest or community of interest privilege ­ is an extension of the attorney-client privilege. The joint defense doctrine is simply stated: "It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.,1989); Capital Properties, Inc.,v. United States, 49 Fed. Cl. 607, 613 (2001) (Merow, J.); see also Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied, 474 U.S. 946 (1985); B.E. Meyers & Co., Inc. v. United States, 41 Fed. Cl. 729, 734 (1998) (Merow, J.). The Court's Rules provide: When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. RCFC 26(b)(5). "It is the party asserting the privilege who bears the burden of establishing its applicability." Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 534 (N.D. Ill. 2000). But, "the rule does not attempt to define for each case what information must be provided" in a privilege log, Pacific Gas and Elec. Co. v. United States, 69 Fed. Cl. 784, 812 (2006) (Hewitt, J.)

8

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 14 of 28

(citing Fed. R. Civ. P. 26(b)(5) Advisory Comm. Note). This Court has recognized that the privilege log itself may serve as the basis for resolving a privilege issue. Pacific Gas, 69 Fed. Cl. at 814. In this instance, Sparton did not challenge the substance of the privilege log or the propriety of the claimed privileges for over eight years.4 After the close of all discovery, Sparton now asserts that the Government should have produced the two documents. Under the present circumstances, the Government's privilege log is adequate to determine the existence of at least the Joint Defense Privilege. Each of the entries indicates that the document is a letter originating with a Magnavox patent attorney and directed to Janice Mueller, a Justice Department attorney assigned to this case. Further, each of the entries indicates that the subject of the letter relates to the present case. And, as Sparton concedes, Magnavox was a contractor which supplied sonobuoys to the Navy. Mot. to Compel at 2. Government contractors have been recognized as sharing a community of interest with the Government in cases under § 1498. See B. E. Meyers, 41 Fed. Cl. at 734. The privilege log are adequate to show, at least, that the Joint Defense Privilege was validly invoked. Accordingly, Sparton's motion must be denied.

Sparton does not include the signature page which would include the date that this privilege log was served. Exhibit E to the Motion to Compel appears to be a privilege log that was served on Sparton on November 13, 1998, signed by Gary L. Hausken, as counsel of record. On its face, however, Exhibit E indicates that Judge Merow was still assigned to the case at the time the privilege log was served. See Mot. to Compel, Ex. E at 1. Thus, the privilege log was served no later than September 12, 2002. See Docket No. 212 (Order transferring the case from Judge Merow to Chief Judge Damich). 9

4

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 15 of 28

B.

REQUEST FOR PRODUCTION 5006

Sparton's Request for Production No. 5006 reads as follows: All documents showing a Navy policy to utilize the changes clause in its fixed price supply contracts to obtain development work from its contractor without including in said contracts, or need to include in said contracts, a patent rights clause granting the government a royalty free license to utilize inventions conceived or first actually reduced to practice in the performance of said contracts. Mot. to Compel, Ex. B at 8. The Government objected because the request was untimely and did not relate to expert discovery. Mot. to Compel, Ex. B at 9. The Government then answered that no such documents were know to exist. Id. 1. Timeliness of the Request

Here again, Sparton's request is directed to factual information, i.e., a purported Navy policy to use the Changes clause in its contracts to obtain development work. Sparton asserts that it needs the information in order for Professor Nash to formulate his opinions and because Sparton's previous fact discovery request "did not cover the Navy policy which is the subject matter of this request." Mot. to Compel at 3-4. While that may be so, it does not justify submission of the Request for Production after the close of fact discovery. First, as Sparton concedes, the amendment to the Government's interrogatory answer after the close of fact discovery did not change the theory under which the Government was arguing that it was licensed or otherwise lawful. Mot. to Compel at 3(the Christian doctrine defense "was raised by the defendant in its answer to Sparton's Interrogatory No. 1 in June 2005 and then was amended in June 2006 to add another contract under which the asserted license occurred"). In both its original answer, served before the close of fact discovery, and its amended answer, served afterward, the Government's reliance on the Christian Doctrine was the

10

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 16 of 28

same. Mot. to Compel at 3. Thus, Sparton had knowledge of the Government's theory before the close of fact discovery and, therefore, the ability to seek discovery to meet its needs during the period reserved for fact discovery. Second, Sparton is not attempting to conduct discovery of the Government's expert, but to provide a basis for formulating its own opinions. As discussed with respect to Request for Production No. 5003, the purpose of expert discovery is to provide the opportunity learn the bases and opinions of the opponent's experts, not to provide further discovery in support of one's own experts. RCFC 26, R. Comm. Note for the 2002 Revision (RCFC 26 amended to parallel

Fed. R. Civ. P. 26); Fed. R. Civ. P. 26, R. Comm. Note to the 1993 Amendment (The requirement in for a complete and detailed report from experts "may ... eliminate the need for some [expert] depositions or at least reduce the length of the depositions"); see also Shell Petroleum, 46 Fed. Cl. at 584. Sparton's request for fact discovery was untimely. 2. Sufficiency of the Government's Response

Sparton also challenges the sufficiency of the Government's answer. The Government answered that no responsive documents were known to exist, but all documents relating to the Navy's policies relating to sonobuoy procurement were produced for inspection and copying. Sparton contends that "no search has been made to ascertain if documents responsive to this request exist." Mot. to Compel at 4. Sparton's statement is misleading. The Government has not searched the records provided at Crane or those originating from Indianapolis for the documents, nor is it required to do so. Pursuant to the RCFC 34, the United States had previously made the procurement records available for inspection and copying on numerous

11

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 17 of 28

occasions. See Exhibits 2-5. As to those records, Sparton bore the burden of inspecting the records and copying any that were pertinent to its case. See RCFC 34(b). Further, the Government permitted inspection of its records relating to procurement policy from the Records of PMA-264. Exhibit 4 at A39. Indeed, Sparton has produced a Declaration by Ralph C. Nash, dated March 15, 1999. Exhibit 9 at A64-65. In paragraph 19 of that declaration, Professor Nash addresses what he describes as a "Navy practice" of using engineering change proposals to "improve the performance of sonobuoys." Id. Further, Professor Nash cites to several documents, which he claims support his position. Each of those documents appears to have been produced by the Government. See Exhibits 10 at A68-A72 (PMA-264 Strategic Plan) & 11at A75-A77 (NAVAIR Acquisition Guide). And, the Government is aware of two other documents which it produced and which recite a Navy policy regarding procurement of sonobuoys: ANA Bulletin No. 445 and the NAVAIR Supplement to ANA Bulletin No. 445. Exhibits 12 & 13. These two documents are the basis for the Government's contention that no documents responsive to Request No. 5006 are known to exist. ANA Bulletin No. 445 purports to establish a uniform Air Force/Navy policy with regard to the use engineering change proposals. The production of these documents further supports the Government's view that all documents relating to the Navy's policy were provided for Sparton's inspection and copying.

C.

REQUEST FOR PRODUCTION 5007

Sparton's Request for Production No. 5007 reads as follows:

12

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 18 of 28

All documents showing the Navy appropriations for the purchase of production sonobuoys and for the separate purchase of research and development work regarding sonobuoys in the period January 1, 1965 to January 1, 1994. Mot. to Compel, Ex. B at 8. The Government responded that "The United States is unsure that any documents exist that are responsive to the request as stated." Mot. to Compel, Ex. B at 10. 1. Timeliness of the Request

Like Request for Production 5006, Request for Production No. 5007 is again directed to factual information, this time budget information for a 29-year span. Sparton again asserts that it needs the information in order for Professor Nash to formulate his opinions and because Sparton's previous fact discovery requests "did not cover the Navy appropriations which are the subject matter of this request." Mot. to Compel at 4-5. As with the previous request, Sparton's failure to seek discovery earlier does not justify submission of Request for Production No. 5007 after the close of fact discovery. As Sparton again concedes (Mot. to Compel at 4) the amendment to the Government's interrogatory answer after the close of fact discovery did not change the theory under which the Government was arguing that it was licensed or otherwise lawful. Both the Government's original answer and its amended answer rely on the Christian Doctrine. Mot. to Compel at 4 (the Christian doctrine defense "was raised by the defendant in its answer to Sparton's Interrogatory No. 1 in June 2005 and then was amended in June 2006 to add another contract under which the asserted license occurred"). Thus, Sparton had knowledge of the Government's theory before the close of fact discovery. And again, Sparton is not attempting to conduct discovery of the Government's expert, but to provide a basis for formulating its own opinions. As discussed with respect to Request for

13

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 19 of 28

Production No. 5003, the purpose of expert discovery is to provide the opportunity learn the bases and opinions of the opponent's experts, not to provide further discovery in support of one's own experts. RCFC 26, R. Comm. Note for the 2002 Rev. (RCFC 26 amended to parallel Fed.

R. Civ. P. 26); Fed. R. Civ. P. 26, R. Comm. Note to the 1993 Amend. (The requirement in for a complete and detailed report from experts "may ... eliminate the need for some [expert] depositions or at least reduce the length of the depositions"); see also Shell Petroleum, 46 Fed. Cl. at 584. Sparton's request for fact discovery was untimely. 2. Sufficiency of the Government's Response

As noted, the Government responded that it was unsure that any documents were responsive to the request as written. The difficulty arises from Sparton's choice of terminology. Sparton asks for all documents "showing the Navy appropriations for the purchase of production sonobuoys and for the separate purchase of research and development work ...." Mot. to Compel, Ex. B at 8. The Sparton request assumes the both procurement of production sonobuoys and sonobuoy research or development work are under discrete "appropriations" that are discernable. Indeed, in its motion, Sparton states: It is believed that the Navy receives a separate and distinct appropriation for the purchase of production sonobuoys as distinguished from the purchase of sonobuoy research and development work which may be a line item in its research and development appropriation. Mot. to Compel at 5 (emphasis added). Thus, Sparton's request is based on its own assumptions of how the United States Government accounts for the funds used by Navy for sonobuoy work. Those assumptions appear to be flawed.

14

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 20 of 28

As an initial matter, Sparton is inconsistent in describing its request. Request No. 5007 asks for documents relating to two distinct "appropriations" (notably in the plural): one for production sonobuoys and one for "sonobuoy research and development work." But its Motion to Compel, suggests that only one appropriation ­ for production sonobuoys ­ is discrete, while the research and development work is performed under a general appropriation. Compare Mot. to Compel at 5 with Mot. to Compel, Ex. B at 9. The procurement of sonobuoys traditionally has not been the subject of a line item appropriation. For example, for Fiscal Year 1991, the appropriation was accounted for under the category "Other Procurement, Navy": For procurement, production, and modernization of support equipment and materials not otherwise provided for, Navy ordnance ...; the purchase of not to exceed 2 vehicles required for physical security of personnel,...; expansion of public and private plants, including the land necessary therefor, and such lands and interests therein, may be acquired, and construction prosecuted thereon prior to approval of title; and procurement and installation of equipment, appliances, and machine tools in public and private plants; reserve plant and Government and contractor-owned equipment layaway; $5,627,160,000, to remain available for obligation until September 30, 1993, of which not less than $160,000,000 shall be for the procurement of sonobuoys.... Department of Defense Appropriations Act, 1991, Pub. L. 101-511, 104 Stat. 1856, 1866 (1990). The 1991 appropriations act is consistent with the Government's knowledge of the historical funding of sonobuoys for the Navy. The funding of sonobuoys historically has not been through discrete appropriations for those devices. Rather it has been funded through discretionary allocation of funds for sonobuoys through general appropriations, like the Navy's 1991 "Other procurement" funding. Thus, the Government does not believe that any documents responsive to plaintiff's request exist because

15

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 21 of 28

there is no fixed or determinable amount that is "appropriated" specifically for sonobuoys, either for procurement or research and development. Further, to the extent that Sparton is asserting that it is looking for any information as to Navy's funding of its sonobuoy program, that information was already provided at Sparton's request during the previous document inspections. Exhibits 4-5. All available documents relating to the procurement of sonobuoys have been previously provided. The Navy's appropriations are a matter of public record, and widely-available through both print media and internet-based services, such as Lexis-Nexis and Westlaw. Sparton can easily acquire all available information as to the Navy's appropriations through those public sources. See RCFC 26(b)(2) (court may limit use requests for production where the "discovery sought ... is available from some other source that is more convenient [or] less expensive"). Sparton has not demonstrated that the Government has withheld any responsive documents from discovery. The request should be denied.

D.

REQUESTS FOR ADMISSIONS 2001-2006, 2008 AND 2009

Sparton's Motion to Compel separately addresses the following groups of requests for admissions: 2001-2003, 2004, 2005-2006, 2008 and 2009. See Mot. to Compel at 5-8. In the end, however, there are only insubstantial differences in the treatments of these groups in the Motion to Compel. Accordingly, we address Requests for Admissions Nos. 2001-2006, 2008 and 2009 collectively. The Government has objected to each of these Requests for Admission (RFA) as being in improper form, untimely, and unduly burdensome. We address each argument in turn.

16

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 22 of 28

1.

RCFC 36 Objection As to Form

The proper form for every request for admission is established by RCFC 36(a), which requires: "Each matter of which an admission is requested shall be separately set forth." In order to comply with the rule "the requesting party bears the burden of setting forth its requests simply, directly, not vaguely or ambiguously, and in such a manner that they can be answered with a simple admit or deny without an explanation ...." Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 77 (N.D. N.Y. 2003) (address identical language in Fed. R. Civ. P. 36(a)). Examples of proper single-matter requests for admissions are found in Thalheim v. Eberheim, 124 F.R.D. 34, 35 (D. Conn.1988) (e.g., "Request No. 7[:] On September 27, 1985 Stardust Too came free from its mooring."). RFA Nos. 2001-2008 fail to separately state each matter to be admitted, as required by the rule. RFA No. 2001 states "[a]dmit each sentence in Sparton Corporations's [sic] Statement of Relevant Facts 1-27 contained on pages 30 through 45 of Sparton's Pretrial Submissions." Mot. to Compel, Ex. C at 5. Even if one were to assume5 that each sentence in those 15 pages constituted a single matter, in excess of 75 "matters" are stated in the 27 paragraphs. Similarly, RFA No. 2002 states: "[a]dmit each sentence in Sparton Corporations's [sic] Statement of Relevant Facts 30 contained on page 48 of Sparton's Pretrial Submissions ...." Mot. to Compel, Ex. C at 7. Paragraph 30 contains five sentences. Mot. to Compel, Ex. F at 22. And RFA 2003 parallels RFA 2001, but asks about different paragraphs: "[a]dmit each sentence in Sparton Corporation's Statement of Relevant Facts 31 through 53 contained on pages 48 through 63 of

Such an assumption would not be well-founded. See Mot. to Compel, Ex. F at 14, ¶ 19, second sentence (single sentence stating eight factors that "affect the propagation of sound waves in the ocean"). 17

5

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 23 of 28

Sparton's Pretrial Submissions." Mot. to Compel, Ex. F at 9. Thus, Sparton failed to comply with the requirement to separately set forth each matter it for which it requests an admission. RFA Nos. 2004 through 2006 and 2009 request admissions relating to Exhibit 24 to Sparton's Pretrial Submissions, which contains information relating to 62 contracts for sonobuoys accused in this litigation. Exhibit 24 is Exhibit I to the Motion to Compel. RFA No. 2004 request admission that"at least one" of "each accused device identified in the two accounting base charts included as exhibit 24" were used during each of six stated permutations of the accounting period. Mot. to Compel, Ex. C at 11. RFA No. 2005 requests admissions to correctness of the delivery dates in Exhibit 24, and RFA No. 2006 asks for admissions as to the correctness of each contract value in Exhibit 24. Mot. to Compel, Ex. C at 13, 14. RFA No. 2009 asks the Government to admit that neither Magnavox nor the Navy proposed the Magavox SSQ-53B sonobuoy as an alternative to the accused sonobuoys manufactured under 62 contracts listed in Exhibit 24. Mot. to Compel, Ex. C at 19. Each of these requests suffers from the same

disability: Exhibit 24 contains multiple data points relating to the 62 contracts which must be independently verified and either admitted or denied. The Government, however, cannot do that in simple "admit" or "deny" fashion because the data points have not been separately set forth. RFA No. 2008 requests that Government admit the correctness of (1) selling price, (2) number of sonobuoys quoted, (3) fee, (4) cost of money, (5) total cost through G&A and (6) requested profit percent for each of 15 bids that Sparton submitted contracts or bids. Mot. to Compel, Ex. C at 17. As such, it requires admission or denial of 90 data points. See Mot. to Compel, Ex. J (Exhibit 26 that is referenced in RFA No. 2008). On its face, this request for

18

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 24 of 28

admission clearly violates of the mandate in RCFC 36(a) to "separately set forth" each matter to be admitted or denied. 2. Timeliness of Requests for Admissions

All of the requests for admission (RFA Nos. 2001-2006, 2008 and 2009) are untimely for the reasons previously addressed with respect to Sparton's requests for production. Each of the these requests inherently raises issues of fact not expert opinion. Sparton concedes that the RFA No. 2001-2003 are directly related to facts on which "defendant's experts relied." Mot. to Compel at 5 (emphasis added). But Sparton does not seek the opinions or bases from the Government's experts. Rather Sparton merely seeks to obtain admissions that certain of the facts are true. Such a request does not seek "expert discovery," but "fact discovery." See Shell Petroleum, 46 Fed. Cl. at 584. Sparton further contends that Mr. Hudson relied on matters very similar to those which are the subject of these requests for admissions. Sparton's claim is both inaccurate and irrelevant. Sparton cites to Mr. Hudson's report, where Mr. Hudson states "Counsel has informed me that I may consider factual matters in Exhibits C and D as having been established." Mot. to Compel at 5 & Ex. H at 3, 5-9. Mr. Hudson's report is irrelevant to the present issue. Whether or not Mr. Hudson relied on matter of which he was advised by counsel is not germane to whether the Government must answer the present requests for admission. The issue here is whether Sparton has properly framed its requests for admissions, whether the requests were timely presented and whether those requests are unduly burdensome for failure to provide citations. Mr. Hudson's report does not help answers any of those inquiries.

19

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 25 of 28

Sparton also points to the Government's submission of 415 proposed stipulations to Sparton as providing a basis for the serving the requests for admission. Id. at 5 & Ex. G. Sparton's reliance on the Government's proposed stipulations is equally misplaced. The Court's Proposed Trial Preparation Order, which is published on the Court's internet site, requires that the parties file: (2) a Joint Stipulation of Facts, Witnesses, and Exhibits as follows: (a) a statements of the facts on which the parties agree, separately numbered and based on the parties' Proposed Findings of Fact; a listing of all witnesses to which neither party objects, with a brief description of each such witness; a descriptive listing of all exhibits to which neither party objects on the grounds of authenticity or admissibility ....

(b)

(c)

Proposed Trial Preparation Order at ¶ 2.c.ii.(2). The Government's proposed stipulations were merely a effort to start the process of preparing the required Joint Stipulation of Facts. Sparton, on the other hand, chose not to propose any stipulations in response to the Government's proposal. Instead, Sparton served these present requests for admissions. Sparton does not explain why it chose the present method (rather than discussing possible stipulations with opposing counsel), nor does it explain why it waited until well after the close of fact discovery to do so. Finally, Sparton contends that the requests for admissions are proper expert discovery because they "directly relate to ... the facts upon which defendant's" experts rely. Mot. to Compel at 6. Here, again, Sparton misconstrues the purpose of expert discovery. The requests for admissions are not a form of expert discovery because Sparton does not seek the to discovery the experts' opinions or the bases of those opinions. Rather, Sparton already knows the

20

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 26 of 28

operative facts and is simply trying to obtain admissions to the truth of those facts. Sparton seeks fact discovery, not expert discovery. 3. The Requests Are Unduly Burdensome

RCFC 26 requires the Court to limit the scope of discovery where "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account ... the importance of the proposed discovery in resolving the issues." That the requests for admission place undue burden on the Government in this instance flows from Sparton's failure to comply with the requirement to state each fact separately. Through its multi-part requests for admission, Sparton has attempted to unfairly place the burden on the Government to parse out separate facts information and separately admit or deny each such fact. That burden is assigned to the author of the requests by RCFC 36(b). Rather than re-write its Pretrial Submissions as separate facts, however, Sparton simply attempts to write broad request that cover multiple sentences, and in some cases, multiple paragraphs of its Pretrial Submissions. The burden imposed on the Government is further increased because Sparton has not provided citations for virtually any of the asserted facts. Thus, the Government is first forced to determine the source of the information before it can determine the accuracy of the requested stipulation. By comparison, the Court's Proposed Trial Preparation Order, at ¶¶ 2.a.i.(1)(c) & 2.a.i.(1)(b), requires that the each party identify the basis for each asserted fact. Finally, denying Sparton's motion to compel will not impede the prompt and fair resolution of the issues in this case. As discussed above, the Court will undoubtedly require the parties to discuss stipulations as part of the pretrial procedures. Proposed Trial Preparation Order

21

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 27 of 28

at ¶ 2.c.ii.(2). As Sparton points out (Mot. to Compel at 5), the Government has already proposed 415 potential stipulations. Thus, the Government has already demonstrated its willingness to discuss stipulations for the purpose of trial. We see no reason why Sparton's requests cannot be addressed as part of that stipulation process.

III.

CONCLUSION Sparton has failed to demonstrate that it is entitled to relief. All of Sparton's discovery

requests at issue here were untimely when served. Further, the Government's responses to the requests for production were sufficient. And Sparton's requests for requests for admission fail to comply with the Court's Rules. For all of these reasons, and others addressed above, the Government requests that the Court deny Sparton Corporation's Motion to Compel Sufficient

22

Case 1:92-cv-00580-EJD

Document 281

Filed 10/20/2006

Page 28 of 28

Answers to Requests for Admissions Pursuant to RCFC 36(a) and the Production of Documents Pursuant to RCFC 34(b). Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director s/Gary L. Hausken GARY L. HAUSKEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0342 Facsimile: (202) 307-0345 October 20, 2006 Attorneys for the United States

23

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 1 of 37

IN THE UNITED STATES COURT OF FEDERAL CLAIMS SPARTON CORPORATION, Plaintiff, ) ) ) ) ) ) ) ) ) )

No. 92-580C Chief Judge Edward J. Damich

v. THE UNITED STATES, Defendant.

OPPOSITION OF THE UNITED STATES TO SPARTON'S MOTION TO COMPEL ANSWERS TO ITS REQUESTS FOR ADMISSIONS AND REQUESTS FOR PRODUCTION OF DOCUMENTS

EXHIBIT 1

A1

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 2 of 37

IN THE UNITED STATES COURT OF FEDERAL CLAIMS SPARTON CORPORATION, Plaintiff,

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) )

No. 92-580C Judge James F. Merow

DEFENDANT'S RESPONSES AND oBJEcTIONS TO PLAINTIFF.'S REQUESTS FOR PRODUCTION OF DOCUMENTS NOS.

17-204

Defendant, the Unite-d States (hereafter "the government") objects and responds to "Plaintiff's Requests for Production of Documents Nos. 17-204," served May 4, 1994, pursuant to Rule 34 of the Rules of the United States Court of Federal Claims (RCFC). The government's response includes that of the Department of Justice and-incorporates by reference the accompanying "Responses on Behalf of the Department of the Navy to Plaintiff's Requests for Production Nos. 17-204." .... Pursuant to RCFC 34, the government will make available for inspection and copying by plaintiff all non-privileged, nonclassified portions of the documents and things, not subject to any objection, which are responsive to plaintiff's requests for production. The documents and things will be produced at the location(s) noted in the responses of the Department of the Navy, in the manner in which they are normally kept, at a mutually convenient time to be arranged through government counsel. The government's investigation in response to these requests for production is ongoing. The government and its agencies .-

A2

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 3 of 37

reserve the right to supplement their responses should additional responsive documents or things be located. The government's objections to each request for production are stated herein. The government's identification or production of any document or thing in response to any request for production is not to be considered as a waiver of any objection stated herein, or as a waiver of any claim that other documents or things are covered by attorney-client privilege or attorney~ work-product immunity or otherwise protected from discovery in whole or in part. The following General Objections are expressly referred to in the government's specific objections to each request for production, and should be deemed as incorporated by reference where noted.

GENERAL OBJECTIONS The government, on behalf of itself, the Department of Justice, and the Department of the Navy, generally objects pursuant to RCFC 34(b) to plaintiff's requests for production on the following general grounds: I. The government objects to plaintiff's requests for

production to the extent that they seek documents or things which are protected from discovery by any evidentiary privilege, restriction or exemption including but not limited to attorneyclient privilege or attorney work-product immunity.

-2-

A3

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 4 of 37

II. The government objects to plaintiff's requests for production to the extent that they seek documents or things which are classified for reasons of national security. III. The government objects to plaintiff's requests for production asunduly burdensome to the extent that they seek documents or things which:

(a) (b)
(c)

plaintiff has or should have; the government has previously produced to plaintiff during this lawsuit; is or will be equally available to plaintiff, particularly after the government's production of documents;

(d)

requires the government to perform an analysis which can be as easily performed by plaintiff;

(e)

requires an investigation of or discovery from a nonparty, such as a contractor; or

(f)

requires an investigation beyond the scope of discovery permitted by RCFC 26(b).

IV.

The government objects to plaintiff's requests for

production as unduly burdensome in scope to the extent that plaintiff defines the terms "sonobuoy, "sonobuoy release plate, " " and "sonobuoy related hardware" to encompass subject matter other than that claimed in the patents in suit. V. The government objects to plaintiff's requests for

production to the extent that plaintiff defines the term "purchased" as defined by U.C.C. § ~'201i32) (1990). The Uniform
-3-

A4

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 5 of 37

Commercial Code is not binding on the federal government. See Marine.Midland Bank v. United States, 687 F.2d 395, 401 n.5 (Ct. CI. 1982), cert. denied, 460 U.S. 1037 (1983); Hubbs v. United States, 20 Cl. Ct. 423, 427 (1990), aff'd, 925 F.2d 1480 (Fed. C~r. 1991) (Table).

-4-

A5

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 6 of 37

Request for Production No. 69: As to each contract for either sonobuoy(s) or sonobuoy release plate(s) between the government and Maqnavox Government .and Industria!.Electronics Company (see government's Amended Answer, paragraph7) within the period from and including November 18, 1975 through and including June 14, 1994, produce:
(a) the executed contract including technical specifications, performance specifications and statement(s) of work; (b) contract modification(s), engineering change proposal(s), change order(s) and contract change proposals; (c) documents submitted as required by a Contract Data Requirement List(s) (CDRL) under the contract;

(d)
(e)

technical descriptions referring to or relating to the sonobuoy(s); technical descriptions referring to or relating to the sonobuoy release plate(s);

(f) operational ....... description(s) referringto or relating to the sonobuoy(s); (g) operational description(s) referring to or relating to the sonobuoy.release plate(s); (h) drawings, including engineering drawings, referring to or relating to the sonobuoy(s);

-213-

A6

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 7 of 37

(i)

drawings, including engineering drawings, referring to or relating to the sonobuoy release plate(s);

(j)

documents referring to or relating to performance testing and evaluation for the sonobuoy(s);

(k)

documents referring to or relating to performance testing and evaluation for the sonobuoy release plate(s);

(i)

documents referring or relating to acceptance criteria for the sonobuoy(s);

(m)

documents referring or relating to acceptance criteria for the sonobuoy release plate(s);

(n)

documents referring or relating ~to bills of material under the contract;

(o)

documents referring or relating to engineering test procedures; _

(p)

documents referring or relating to production test procedures;

(q) (r)

documents referring or relating to billing; documents referring or relating to payments made to the contractor;

(s) documents referring or relating to acceptance by the governmentof the sonobuoy(s) under the contract;

-214-

A7

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 8 of 37

(t)

documents referring or relating to acceptance by the government of the sonobuoy release plate(s)under the contract;

(u)

documents referring or relating to acceptance by the government of the sonobuoy related hardware under the contract;

(v)

documents referring or relating to delivery of sonobuoy(s) under the contract;

(w)

documents referring or relating to delivery of sonobuoy release plate(s) under the contract;

(x)

documents referring or relating to delivery of sonobuoy related hardware under the contract;

(y) documents referring or relating to the quantity of sonobuoy(s) delivered or to be delivered under the contract; (z) documents referring or relating to the quantity of sonobuoy release plate(s) delivered or to be delivered under the contract; (aa) documents referring or relating to the quantity of sonobuoy related hardware delivered or to be delivered under the contract; (bb) a representative sample of each type or ~model of sonobuoy delivered or to be delivered under the contract;

-215-

A8

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 9 of 37

(CC) a representative sample of each type of sonobuoy release plate delivered or to be delivered under the contract; and (dd) a representative sample of each item of sonobuoy related hardware delivered or to be delivered under the contract.

Response to Request for Production No. 69: General Objections I-IV are made to Request for Production No. 69. The government further objects to Request for Production No. 69 on the ground that it is duplicative of Requests for Production Nos. 67-68. The government further objects to Request for Production No. 69 on the ground that it is unduly burdensome to the extent that production is sought of documents and things having an effective date prior to plaintiff's recovery period, which plaintiff has stated begins on February ii, 1981. ...... The g~ment ObjectS to s~parts (j)~(m) and (~)~(p) of this request for production as vague and ambiguous. Plaintiff does not define nor distinguish the terms "performance testing " and evaluation," "acceptance criteria, "engineering test, and " "production. test."

-216-

A9

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 10 of 37

Request for Production No. 70: As to each contract for either sonobuoy(s) or sonobuoy release plate(s) between the government and Maqnavox Electronics .Systems Company (see government's Amended Answer, paragraph 7) within the period from and including November 18, 1975 through and including June 14, 1994, produce: (a) the executed contract including technical specifications, performance specifications and statement(s) of work; (b) contract modification(s), engineering change proposal(s), change order(s) and contract change proposals; (c) documents submitted as required by a Contract Data Requirement List(s) (CDRL) under the contract; (d) technical descriptions referring to or relating to the sonobuoy(s); (e) technical descriptions referring to or relating to the sonobuoy release plate(s);

relating to the sonobuoy(s); (g) operational description(s) referring to or relating to the son0buoy release plate(s); (h) drawings, including engineering drawings, referring to or relating to the sonobuoy(s);

-217-

A10

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 11 of 37

(i)

drawings, including engineering drawings, referring to or relating to the sonobuoy release plate(s);

(j)

documents referring to or relating to performance testing and evaluation for the sonobuoy(s);

(k)

documents referring to or relating to performance testing and evaluation for the sonobuoy release plate(s);

(i)

documents referring or relating to acceptance criteria for the sonobuoy(s);

(m)

documents referring or relating to acceptance criteria for the sonobuoy release plate(s);

(n)

documents referring or relating to bills of material under the contract;

(o)

documents referring or relating to engineering test procedures;

(p)

documents referring or relating to production test procedures;

(q) (r)

documents referring or relating to billing; documents referring or relating to payments made to the contractor;

(s) documents referring or relating to acceptance by the government of the sonobuoy(s) under the contract;

-218-

A11

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 12 of 37

(t)

documents referring or relating to acceptance by the government of the sonobuoy release plate(s) under the contract;

(u)

documents referring.or~relating to acceptance by the government of the sonobuoy related hardware under the contract;

(v)

documents referring or relating to delivery of sonobuoy(s) under the contract;

(w)

documents referring or relating to delivery of sonobuoy release plate(s) under the contract;

(x)

documents referring or relating to delivery of sonobuoy related hardware under the contract;

(y) documents referring or relating to the quantity of sonobuoy(s) delivered or to be delivered under the contract; (z) documents referring or relating to the quantity of sonobuoy release plate(s) delivered or to be delivered under the contract; (aa) documents referring or relating to the quantity of sonobuoy related hardware delivered or to be delivered under the contract; (bb) a representative sample of each type or model of sonobuoy delivered or to be delivered under the contract;

-219-

A12

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 13 of 37

(cc) a representative sample of each type of sonobuoy release plate delivered or to be delivered under the contract; and (dd) a representative sample of each item of sonobuoy related hardware delivered or to be delivered under the contract.

Response to, Request for Production No. 70: General Objections I-IV are made to Request for Production No. 70. The government further objects to Request for Production No. 70 on the ground that it is duplicative of Requests for Production Nos. 67-68. The government further objects to Request for Production No. 70 on the ground that it is unduly burdensome to the extent that production is sought of documents and things having .an effective date prior to plaintiff's recovery period, which plaintiff has stated begins on February ii, 1981. The government objects to subparts (j)-(m) and (o)-(p) of this request for production as vague and ambiguous° Plaintiff does not define nor distinguish the terms "performance testing and evaluation," "acceptance criteria," "engineering test," and "production test."

-220-

A13

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 14 of 37

Respectfully submitted, FRANK W. HUNGER Assistant Attorney General VITO J. DiPIETRO Director

~E M. MUELLER Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 (202) 616-8116 June 3, 1994

-370-

A14

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 15 of 37

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SPARTON CORPORATION, Plaintiff,
V.

)
)

) )
) No. 92-580C

UNITED STATES, Defendant.

) ) ) )

RESPONSES ON BEHALF OF THE DEPARTMENT OF THE NAVY TO PLAINTIFF'S REOUESTS FOR PRODUCTION Nos. 17-204

In response to Plaintiff's Requests for Production to Defendant, The United States, the Department of the Navy provides the following responses to Requests for Production Nos. 17-68, .... "76-82,' 88~'and~~89~a~s~'far.as'they~per~in ~tO~heDepartment ~f the Na~ (inCluding the Marine COrps). It is understood that the Department of Justice will respond and/or object to certain of Plaintiff's Requests for Production. Information relating to the residential addresses of persons may not be disclosed in accordance with the Privacy Act~ Title 5 U.S.C. 552a. Responses are limited to records and things in the possession, custody or control of the Department of the Navy in accordance with the Rules of the United States of Court Federal Claims. A diligent search has been made of those Navy activities

A15

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 16 of 37

likely to use sonobouys. Documents and things responsive to the requests for production will be produced pursuant to Rule 34(b) of the United States of Court Federal Claims, in the manner in which they are kept in the usual course of business, at the locations noted herein. Such production is not a waiver of Defendant's right to exclude any document which is subject to attorney-client, attorney work-product, state secrets, or any other evidentiary privilege. In response to those Requests for Production where specific documents are produced, production of the documents is not to be considered as a waiver of any claim that such document or any . information contained therein is immune from discovery in whole or.inpart. Some documents which are subject to Plaintiff's Requests for Production may contain information which is of a business

limitation. See 18 U.S.C. 1905. Accordingly, the Government's production of such documents for inspection will be subject to the condition that any third party, who claims such document or information to be proprietary or confidential, agrees to the disclosure of such documents or information or is ordered by the Court to comply with a suitable protective order.
-- 2 -

A16

Case 1:92-cv-00580-EJD

Document 281-2

Filed 10/20/2006

Page 17 of 37

Some of the documents responsive to Plaintiff's Requests for Production may contain classified information. Production of such documents will be made only to persons with proper security clearances and authorization. Any copying o