Free Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 03-289C (Judge Allegra)

DEFENDANT'S STATUS REPORT REGARDING DISCOVERY Defendant, the United States, respectfully submits this report pursuant to the Court's order dated October 17, 2005. The Government has made "significant progress toward completing document production" in accordance with the Court's order dated September 20, 2005, regarding plaintiff's motion to compel, although more may remain to be accomplished. Unfortunately for both parties, the substantial progress made in our diligent search for documents has resulted in our locating and producing relatively few additional documents responsive to United Medical Supply's discovery requests. The absence of

documents does not reflect an absence of progress in the search. A senior Department of Justice paralegal, Peter Brown, is assigned to coordinate the search for medical treatment facility ("MTF") records, under the supervision of undersigned Government counsel. As Mr. Brown describes in his attached declaration, he

contacted seven supply personnel who collectively are knowledgeable about all or virtually all of the MTFs at issue (certainly about all of the larger facilities). Mr. Brown

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requested records in accordance with the parties' joint status report dated July 15, 2005. He learned of responsive materials

at three Army facilities: Brooke Army Medical Center, in San Antonio, Texas; Fort Hood, in Central Texas; and Fort Sill, in Oklahoma. The Government provided United Medical electronic

copies of all of these responsive MTF documents in July and August 2005. In addition, in September 2005, the Government sent Mr. Brown to Dallas, Texas, to review and arrange for the copying of records produced by United Medical's lender, CIT Group Inc., in response to a subpoena served by plaintiff. The CIT documents

(11 large boxes) are still being duplicated and should be provided to plaintiff's counsel this week. Furthermore, undersigned counsel directly contacted the Army Medical Command ("MEDCOM") for assistance in locating any MTF credit card records and other responsive records. As noted in

the attached e-mail dated October 21, 2005 from a MEDCOM accounting contractor, upon behalf of Col. Michael Johnson of that command, MEDCOM's separate search of the 10 Army MTFs in the Southwest region uncovered no new responsive documents. MEDCOM

further reports that in recent years, it has adopted a new electronic data storage system, and no budgeting or spending data from the period of contract performance (1997-2001) reside in the

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current system.

Undersigned counsel intends to follow up with

MEDCOM for additional details. In the course of the Government's search, Deborah Thompson, the Deputy Chief of Medical Materiel at Brooke Army Medical Center, discovered that several boxes that were thought to contain the records of credit card transactions for one or more Army MTFs at issue cannot be located, and are presumed to have been destroyed in the course of routine deaccession approximately two years ago. Ms. Thompson reported this to undersigned counsel Although no one can say how useful those

on October 17, 2005.

documents might have been to the parties, the Government regrets this apparent accidental destruction of potentially probative documents and recognizes its obligation to explain the circumstances to plaintiff in greater detail. We further acknowledge the need to respond to pending interrogatories ­ which we had hoped to answer based upon financial data found in our search for responsive records ­ by explaining specifically why we cannot perform the calculations desired by plaintiff, absent 1997-2001 financial data. We will

also continue to search out and canvass contacts within the military services for potentially responsive documents. We frankly have no reason to expect that any substantial number of such documents will be located. The sheer number of

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documents produced should not be the litmus test, however, of the adequacy of defendant's search. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ DAVID M. COHEN Director

s/Kyle Chadwick KYLE CHADWICK Trial Attorney Commercial Litigation Branch Department of Justice Attn: Classification, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant October 24, 2005

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CERTIFICATE OF FILING I certify that on October 24, 2005, the foregoing status report 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. through the Court's system. Parties may access this filing

s/Kyle Chadwick

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