Free Response to Motion - 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. )

No. 03-289C (Judge Allegra)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY Pursuant to the Court's Rules ("RCFC"), defendant, the United States, respectfully responds to the motion filed by plaintiff, United Medical Supply Company, Inc. ("United Medical"), on July 27, 2007, which United Medical styles a motion to "compel discovery." Plaintiff's motion should be denied because (1) the issues raised in the motion concern routine matters of timing and scheduling, rather than discovery objections or other disputes, and thus need not, and should not, have been brought before the Court; (2) plaintiff did not confer meaningfully with us regarding its pending deposition requests and interrogatories before filing its motion and has failed to certify, as required by RCFC 37(a)(2)(B), that it conferred in good faith; (3) plaintiff omits material information from its motion; (4) we advised plaintiff in writing on August 7, 2007, of the availability for depositions of four of the six people listed in footnote 1 of plaintiff's motion, and explained our inability, to date, to contact the other two individuals, yet plaintiff has declined to participate in scheduling depositions; and (5) plaintiff improperly seeks to "compel" actions that it never sought from us through ordinary discovery, e.g., "detailed descriptions" of our internal investigations and the production of all witnesses for depositions within a two-week period in September 2007. Pl. Mot. 2.

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BACKGROUND The Government has been more or less continuously providing plaintiff with discovery for the past several months. Since early April 2007 alone, a half-dozen Government attorneys and non-attorneys have devoted literally hundreds of hours to our investigations. We have been responsive and cooperative. The recent events leading to United Medical's surprise filing of its motion to "compel" were as follows. During the week of June 25-29, 2007, undersigned counsel traveled to Oklahoma and Texas to accommodate plaintiff's attempt to take three depositions in different cities on consecutive days. Because of inclement weather, which caused flight cancellations, only two depositions were completed, one in Lawton, Oklahoma, and the other in San Antonio, Texas. E-mail messages between counsel concerning discovery matters resumed immediately on Monday, July 2, and continued apace. (All correspondence referenced in this brief is attached.) On Thursday, July 5, less than one week after our deposition trip, undersigned counsel advised plaintiff's counsel that, for multiple reasons, including the leave status of key personnel and defendant's counsel's responsibility for two trials, scheduled for July 23-27 (Richmond American Homes, et al. v. United States, Consolid. No. 05-280C (Judge Baskir)) and August 6-14 (Bell BCI Co. v. United States, No. 03-1613C (Judge Wheeler)), (i) discovery would need to be enlarged past the existing deadline of July 27, 2007, but (ii) we were determined to request a reasonable amount of time, and needed more time and information to determine what that amount should be. United Medical's counsel contacted the Court's chambers to request a telephonic status conference, which, in its July 10 order, the Court declined to convene.

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Upon receiving the July 10 order, plaintiff's counsel sent an e-mail message to Sak Im, of the Court's chambers, accurately reporting that Kyle and I received the Court's order today regarding discovery. We really don't have a dispute, just a problem. Kyle is up to his eyeballs in other matters and DSCP personnel are generally unavailable for sometime [sic]. Bottom line is we need a fact discovery extension. Kyle and I anticipate filing a joint motion for extension. (Emphasis added.) Also on July 10, undersigned counsel advised plaintiff's counsel, As much as I wish it were otherwise, realistically, since I'm in trial Aug. 6-14, and I know from experience how difficult it is every year for agencies to finish tasks in August, I think we're looking at an extension past Labor Day, at a minimum. But I want to be as accurate as possible. I don't think I'll be in position to project realistic dates until the middle of next week [approximately July 18], at the earliest. Despite that closing admonition ­ repeating what we had told plaintiff five days earlier, on July 5 ­ only two days later, on July 12, plaintiff began asking us to agree to a revised schedule. One week after that, on July 19 ­ two business days before the start of the Richmond American Homes trial ­ when we as yet had no realistic estimate of our time needs, plaintiff's counsel reported he was "getting antsy" and would "file the motion tomorrow for extension of the discovery deadlines by sixty days." We did not object, naturally. However, plaintiff did not file on Friday, July 20, as promised. Instead, its counsel e-mailed us early on Monday, July 23, the first day of the Richmond American Homes trial, asking, "Kyle, what is the status? I think something should be filed today." That evening, undersigned counsel responded: "As I've said repeatedly, I'll tell you as soon as I have the information I need." This was consistent with earlier communications and reflected no change in our position. Plaintiff responded that it would file its

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"motions," in the plural, on the following day, July 24, the second day of the Richmond trial. In retrospect, that was plaintiff's first indication that it contemplated filing something other than an unopposed motion for enlargement of time. Yet, as noted, only 13 days earlier, on July 10, plaintiff's counsel had accurately told the Court's assistant that the parties "really d[id]n't have a dispute" and that plaintiff's counsel understood the multiple causes of our scheduling difficulties. United Medical filed a motion for a 60-day enlargement of discovery on July 24, and the Court granted it on July 27. To our surprise, however, also on July 27, plaintiff filed the instant motion to "compel discovery." Absent a ripe "dispute," there was, in effect, nothing to "compel," and plaintiff had not conferred substantively with us regarding what it seeks to "compel." (Plaintiff did inquire in late July regarding the status of responses to two interrogatories it had served on June 21, immediately before our discovery trip of the week of June 25. We confirmed, in response, that those were among the interrogatories we had said, since July 5, we needed more time to answer. We heard nothing more about those interrogatories until plaintiff filed the instant motion.) Moreover, plaintiff knew we would receive its motion one week before undersigned counsel's Bell BCI trial was scheduled to begin. (As it happened, in the late afternoon of Thursday, August 2, the Bell BCI trial was postponed until October 2007. Undersigned counsel could then turn more attention back to this case.) On Tuesday, August 7 (after undersigned counsel took one day of leave and obtained supervisory review), we e-mailed plaintiff a three-page letter, in which we addressed what we believe are the significant outstanding discovery issues and asked plaintiff to withdraw its motion to "compel," and to suggest deposition dates for several Government employees, whose availabilities in September were provided in the letter. Plaintiff responded by e-mail at the close 4

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of business on August 8 that it would not withdraw its motion but would "consider" a proposal from us for "essentially an [agreed] scheduling order." By the time we received that response, however, we were obligated to begin preparing this brief. ARGUMENT Motions to compel are appropriate if a deponent fails or refuses to answer a proper question; "a corporation or other entity fails to make a designation under RCFC 30(b)(6) or 31(a)"; or a party improperly refuses to respond to an interrogatory, request for admission, or document request. RCFC 37(a)(2)(B). Even then, the party seeking to compel discovery has an obligation to attempt in good faith to resolve the dispute. Id. United Medical's motion is both procedurally and substantively infirm by those standards. It is a needless distraction from the remaining tasks necessary to resolve this case. It should not have been filed. As in past motions, plaintiff mistakes its impatience with the ordinary back-and-forth and challenges of discovery for matters as to which it is appropriate to involve the Court, pursuant to RCFC 37. To be clear, we have not objected to, and do not "oppose," scheduling the remaining depositions or responding as fully as is feasible to the interrogatories cited by plaintiff. See Pl. Mot. 2. As we described in some detail in our August 7 letter to plaintiff, Government counsel and others have been working on exactly those matters for months. There is simply no need, however, for a Court order "compelling" depositions or interrogatory responses, because there is no ripe dispute concerning those matters. To the contrary, United Medical should immediately begin cooperating with us to schedule depositions. We do object, by contrast, to plaintiff's unexplained request that all remaining depositions take place between September 10 and 24, 2007, id. (although some depositions probably will, in 5

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fact, occur during those two weeks). We do not know what plaintiff means by its request that the Court order us to "[f]ully answer, not just respond to," interrogatories, id., because plaintiff has not discussed this with us. We certainly do not agree that we must provide responses that "fully" satisfy United Medical. The larger points, however, are that the communications summarized above demonstrate that we have been both diligent and candid in responding to United Medical's discovery requests, and its demands for scheduling information; and a motion to "compel" is an inappropriate vehicle for plaintiff to vent its dissatisfaction, however understandable it may be, with what we have accomplished. Plaintiff identifies no grounds to grant its motion. CONCLUSION Accordingly, we respectfully request the Court to deny plaintiff's motion to compel discovery. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/Jeanne E. Davidson JEANNE E. DAVIDSON Director

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OF COUNSEL: MICHAEL McGLINCHEY Trial Attorney Defense Supply Center Philadelphia

s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel 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

August 13, 2007

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CERTIFICATE OF FILING I certify that on August 13, 2007, the attached was filed electronically. I understand that service is complete upon filing and parties and others may access this filing through the Court's electronic system.

s/Kyle Chadwick

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