Free Motion to Compel - 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 SECOND MOTION TO COMPEL DISCOVERY TO THE HONORABLE UNITED STATES COURT OF FEDERAL CLAIMS: This Motion arises out of a dispute between the Government and Plaintiff regarding the Government's obligations to produce documents in response to Plaintiff's Requests for Production. This motion deals with requests for production served on the Government in

accordance with Rule 34 seeking production of files maintained by individual military medical treatment facilities in the Lone Star Region as follows: SUMMARY While this case was pending in the United States Bankruptcy Court, Plaintiff served its first set of written requests for discovery on the Government, including 13 requests for production pursuant to Rule 34. [Attached Exhibit A]. The Government did not objection to any of the 13 requests for production. In response to Plaintiff's requests, the Government represented it would produce those responsive documents for inspection in Philadelphia upon two weeks notice. [Attached Exhibit B]. Indeed, in response to each of the 8 requests for production at issue, the Government stated, directly or by reference to another response,

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"Documents responsive to this request will be made available, upon two weeks written notice, at a mutually convenient time and date at: Defense Supply Center Philadelphia, 700 Robbins Ave., Philadelphia, PA." The responses were verified by Mr. James Jennings, the same verification which is the subject of Plaintiff's complaint in its First Motion to Compel. Plaintiff's counsel give the appropriate notice and appeared with co-counsel in Philadelphia in January 2003 to inspect the documents. Contrary to the representations made by the Government, the only documents produced were documents maintained by DSCP in Philadelphia. No documents maintained by any of the military medical treatment facilities were produced, although requests 3, 4, 5, 6 possibly, 7, 8, 9 possibly, and 13 clearly contemplated production of those documents, and the Government admitted it had not attempted to obtain those documents. The Government assured Plaintiff's counsel, however, that it would produce those documents, but that they would be produced at the individual military bases instead of Philadelphia. In February 2003, shortly after the Philadelphia production, the Bankruptcy Court transferred the case to the Court of Federal Claims. Plaintiff filed an amended complaint with this Court on March 24, 2003. As described in Plaintiff's First Motion to Compel, the

Government claimed that Plaintiff's discovery rights were abated by agreement and court order until February 1, 2005, the date immediately following the entry of the Court's order ending fact discovery in July 2005. This effect of this order was to limit Plaintiff's fact discovery to six months. Since entry of the discovery order in January 2005, the Government has not produced or tendered any documents at any MTF. The Government never claimed that responsive documents do not exist at the MTFs. Indeed, both Ms. Shahan and Mr. Chadwick (DOJ attorneys) advised Plaintiff that the Government would produce responsive documents at each MTF's location. 2

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On September 13, 2004, counsel for Plaintiff complained about Defendant's discovery responses by letter addressed to Mr. Chadwick. That letter included an attached proposed discovery plan in accordance with what Plaintiff's counsel believed was the Court's directive [See Exhibit C, redacted as to settlement communications]. In a response dated September 24, 2004, Mr. Chadwick took the position that Plaintiff had no current right to discovery as Plaintiff had proposed because, according to Mr. Chadwick, only the Government had discovery rights during the initial discovery period pursuant to the JPSR and the Court's order of September 29, 2004. Mr. Chadwick further took the position in his letter that Plaintiff's attempts to obtain a discovery plan were premature because, in his recollection, the Court only directed the parties to be ready to discuss discovery the possibility of streamlined or targeted discovery. In other words, Mr. Chadwick distinguished between discovery discussions and "getting ready" for discovery discussions. Importantly with respect to this motion, however, Mr. Chadwick stated on the last sentence of paragraph 1, "We [the Government] anticipate making documents available for inspection at each MTF during the next phase of discovery." [Exhibit D, page 1 only since page 2 concerns settlement issues and is omitted].

Since the beginning of the "next phase" of discovery in February 2005, no documents have been produce at any MTF. The only documents produced that may have come from any MTF are contained on two compact diskettes that were handed to Plaintiff's counsel on May 25, 2005. These CDs contain numerous (thousands) pages of irrelevant and non-responsive They are not catalogued in any manner and do not meet any production

information.

organization required by COFC Rule 34(b). After hours of review, it appears that a few of the pages appear to be responsive, but the source of those documents cannot be determined.

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Plaintiff's former president suspects that a large percentage of the MTFs' diverted purchases of products described in the Solicitation (i.e., disposable medical/surgical products and hand held surgical instruments) come from 25 or fewer manufacturers, all of whom were DAPA holders and with whom Plaintiff had distribution agreements.1 These few manufacturers provide products that hospitals rarely can do without. Plaintiff represented over 700 manufacturers who held DAPAs. Plaintiff suspects that purchases from the "bottom ¾" were almost insignificant. Plaintiff seeks an order requiring the Government to immediately produce for inspection and copying all documents kept by the MTFs responsive to requests 3, 4, 5, 6, 7, 8, 9, and 13 specifically including all records evidencing purchases directly from the manufacturers identified in Footnote 1 and records evidencing purchases of products manufactured by those same entities, irrespective of the source of such purchases. Signed June 14, 2005.

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Becton Dickinson; Ethicon Inc.; Ethicon Endo Surgery (Johnson & Johnson); Kendall Healthcare (member Tyco Healthcare Group LP); Kimberly Clark Corp.; McGaw Inc. (acquired by B. Braun Medical, Inc. operating as B. Braun USA: Superior Medical Products); Ansell/Perry (a/k/a Ansell Healthcare products LLC); Baxter Healthcare (Baxter International Inc.); Allegiance Healthcare (acquired by Cardinal); Sherwood Medical; Roche Diagnostics; Regent Medical; Terumo Corporation; Kendall - L.T.P. (member Tyco Healthcare Group LP); Critikon; Alaris Medical Systems, Inc.; High Five Products; Medline Industries, Inc.; 3M Corporation; DeRoyal (DeRoyal Industries); C.R. Bard, Inc.; and Bergen Brunswig (n/k/a AmerisourceBergen Corp.).

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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

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CERTIFICATE OF CONFERENCE Counsel for Plaintiff has communicated with counsel for the Government on several occasions regarding discovery from the individual MTFs. Mr. Chadwick has taken the position that the Government understands its obligations to supplement and that he represents the Government, not the individual MTFs. Counsel for Plaintiff is not sure what those statements mean, but discovery from the individual MTFs has not been forthcoming and counsel for Plaintiff does not believe he can wait any longer to seek Court intervention in light of the pending fact discovery deadline. /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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