Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff v. THE UNITED STATES, Defendant

CASE NO: 03-CV-289 Judge Allegra

PLAINTIFF'S MOTION FOR ORDER NUNC PRO TUNC GRANTING LEAVE TO SERVE ADDITIONAL INTERROGATORIES; OR ALTERNATIVELY FOR LEAVE TO RE-SERVE ADDITIONAL INTERROGATORIES AND SHORTEN RESPONSE TIME

TO THE HONORABLE UNITED STATES COURT OF FEDERAL CLAIMS: On June 1, 2005, Plaintiff served counsel for the Government with a set of interrogatories directed to individual Medical Treatment Facilities ("MTFs"). Plaintiff previously served the Government with a first set of interrogatories. Consequently, the recently served sets clearly exceed 25 total interrogatories served by Plaintiff. For the reasons shown below and in its supporting brief, Plaintiff seeks an order nunc pro tunc granting leave as of June 1, 2005 to serve the interrogatories. Alternatively, Plaintiff seeks an order granting it leave to re-serve the interrogatories and shortening time for response.1 Prior to serving the interrogatories, Plaintiff's counsel recalls conferring with Government counsel to determine if the Government would consent to service of additional interrogatories or if Plaintiff should seek leave. The existence of this issue appears in Plaintiff's proposed discovery plan sent to the Government last year, a copy of which is attached to

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The Court has ordered close of fact discovery on July 26, 2005.

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Plaintiff's Second Motion to Compel. Plaintiff's counsel further recalls Government counsel indicating in response that he would not oppose full discovery. Based on that recollection,

Plaintiff's counsel served the interrogatories and requested written confirmation from the Government that leave would not be required. Counsel for the Government responded on June 9, 2005 by letter that he did not recall any discussion on the issue of additional interrogatories, that he did not represent the individual MTFs, only the United States, that Plaintiff had already exceeded its 25 interrogatory limit, and that he would not be responding to the additional interrogatories absent a court order or negotiated stipulation. Government counsel further advised that he was going on leave from June 13 thru June 17, 2005. Finally, Government counsel stated, "I am, in fact, willing to consider stipulating that you may serve upon the Government a reasonable number of additional interrogatories concerning issues that are not addressed in your first 33.2 Your recent

interrogatories do not fit that description, however." The Government did not further enlighten Plaintiff's counsel as to why its interrogatories did not fit that description. The interrogatories served on June 1, 2005 were one set of 22 on most of the MTFs, virtually identical to the set attached as Exhibit A. The interrogatories were organized based on

Plaintiff's individual claims and addressed what Plaintiff's counsel considers to be evasive discovery by DSCP. The first 7 interrogatories concerned the estimation process used by the Government to determine contract value as published in the Solicitation. In its first set directed to the United States, the Government responded to interrogatory 1 asking how it determined its estimates, "If

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Plaintiff inadvertently duplicated several interrogatories in its first set, a duplication recognized by the Government. Accordingly, Plaintiff does not believe the duplicated interrogatories should count against

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this information was provided to DSCP, it is no longer available."

(See, Government's

responses to interrogatories attached to Plaintiff's First Motion to Compel). This illustrates one of the fundamental problems Plaintiff has faced in this case, getting discovery outside of DSCP, i.e., getting discovery from the United States, not just DSCP. So far, Plaintiff has been almost 100% unsuccessful in that effort. Consequently, Plaintiff created and served a few

interrogatories on this particular issue, as shown on Exhibit A, numbers 1 through 7. The next 11 interrogatories were directed to the issue of diversion and estimation. The next interrogatory (No. 19) seeks identification of the records custodian of relevant records. The final 3 interrogatories are miscellaneous interrogatories concerning payment issues, estimation of diversion issues, and identification of persons with knowledge of facts. Plaintiff has made numerous attempts to obtain discovery from the individual MTFs. In every instance DSCP has thwarted that effort. First, Plaintiff served interrogatories on the United States. DSCP had a contract officer sign those interrogatories who had not done any investigation in connection with answering the interrogatories, and did not know of any investigation. [See, Plaintiff's First Motion to Compel, which is pending in this Court]. Plaintiff sought documents from the United States, and only received documents from DSCP. [See Plaintiff's Second Motion to Compel, also pending]. On several occasions, Plaintiff has indicated in wanted to take the 30(b)(6) deposition of the various agencies, but first needed to take Mr. Jennings deposition. In May 2005, Plaintiff specifically requested dates in June for a 30(b)(6) deposition of Fort Hood. No dates for any 30(b)(6) deposition have been provided, and counsel

the 25 limit. This is not much of an issue, since the Government responded without objection to the number of interrogatories.

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for the Government left on leave with notice that dates would be provided when he returned, which return will be June 20, 2005, thus making a June deposition unlikely. The United States had opportunity to obtain discovery during the first phase of discovery. Plaintiff did not have that opportunity. Its requests (and complaints) to the Government during that period to supplement the discovery the Government provided in the bankruptcy proceedings were opposed. When Plaintiff's discovery period began in February 2005, Plaintiff had less than six months to complete its fact discovery in what the Court recognized is a complex case, a discovery deadline which is now about six weeks away. The necessity for interrogatories to each individual MTF resulted from the failure of the Government to provide Government wide answers and documents and to limit its responses and documents to DSCP. Even the DSCP representative who signed the interrogatories did not have any knowledge to support several of his answers. [See, Plaintiff's First and Second Motions to Compel Discovery]. Mr. Chadwick's contention that he does not represent the individual MTFs is clearly a form over substance argument. Plaintiff has the right to take 30(b)(6) depositions of each MTF, entities that undoubtedly would be represented by Mr. Chadwick at such depositions. Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D 496 (S.D. Indiana 2003). Plaintiff believes the Government can reasonably estimate the dollar quantity of diversion. Of the 700+ manufacturers who were DAPA holders, United believes, based on considerable experience as a medical supply distributor, that the majority, if not the vast majority, of diverted purchases were purchased from less than 100 manufacturers, possibly as few as 25. Initially, Plaintiff believed that "Government" would provide that information. The "Government," however, turned out to be DSCP, an agency that has not provided that

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information. Plaintiff has not obtained "Government-wide" information on any issue and there is not any indication that such information will be obtained without a tooth and nail discovery fight. There are a number of factors supporting Plaintiff's Motion. (1) The interrogatories are targeted to specific issues in the case. (2) Plaintiff has previously attempted to obtain the information by other means and has been unsuccessful. (3) The fact discovery deadline of July 26, 2005 is imminent. (4) The Government has failed to provide Government wide discovery in its interrogatories and instead provided evasive, unsupportable answers to those interrogatories by designating a person with wholly insufficient knowledge. (5) The Government has failed to make good on its promises to produce documents at the individual MTFs. Government has not provided any dates for the 30(b)(6) depositions of any MTF. For the reasons set forth above, Plaintiff requests that the Court enter an order nunc pro tunc granting it leave to serve interrogatories on each MTF shown on Exhibit B as of June 1, 2005. Alternatively, Plaintiff seeks an order granting it leave to re-serve interrogatories on each MTF as shown on Exhibit B an order that the Government serve its answers and other responses no later than July 8, 2005. Signed June 14, 2005. Respectfully submitted, /s/ Frank L. Broyles Frank L. Broyles State Bar No. 03230500 Goins, Underkofler, Crawford & Langdon, LLP 1201 Elm Street 4800 Renaissance Tower Dallas, Texas 75270 (214) 969-5454 (214) 969-5902 Fax Attorney for Plaintiff 5 And (6) The

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CERTIFICATE OF CONFERENCE Counsel for the Government, by letter of June 9, 2005, stated that the Government opposes the requested relief. /s/Frank L. Broyles

CERTIFICATE OF SERVICE On June 14, 2005 the foregoing motion was served on the persons shown below by the method shown below in accordance with rule 5.1. /s/ Frank L. Broyles PERSONS SERVED: Kyle Chadwick Department of Justice Method Served: telecopy and ECF

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