In Re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. United States

In the United States Court of Federal Claims
Sub-Master Docket No. 17-9001L

(Filed: June 29, 2020)

(NOT TO BE PUBLISHED)

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IN RE UPSTREAM ADDICKS AND )
BARKER (TEXAS) FLOOD- )
CONTROL RESERVOIRS )
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THIS DOCUMENT APPLIES TO: )
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ALL UPSTREAM CASES )
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Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles
Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart
Boundas Easterby, LLP, Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs. Of Counsel
was Vuk S. Vujasinovic, VB Attorneys, PLLC, Houston, Texas.

Kristine S. Tardiff, Trial Attorney, Natural Resources Section, Environment & Natural
Resources Division, United States Department of Justice, Concord, New Hampshire, for
defendant. With her on briefs were Jean E. Williams, Deputy Assistant Attorney General,
Natural Resources Section, Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C., and William J. Shapiro, Laura W. Duncan, and Sarah
Izfar, Trial Attorneys, Natural Resources Section, Environment & Natural Resources Division,
United States Department of Justice, Washington, D.C.

ORDER

In this takings case involving properties damaged by impounded floodwaters derived
from Hurricane Harvey in 2017, this court found the government liable after a trial focusing on
thirteen bellwether plaintiffs out of the hundreds who brought suit. See In re Upstream Addicks
& Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019) (finding liability for taking
a flowage easement); see also In re Upstream Addicks & Barker (Texas) Flood-Control
Reservoirs, ___ Fed. Cl. ___, 2020 WL 2079889 (Apr. 30, 2020) (delineating scope of the
flowage easement). Currently pending before the court are four motions related to fact
discovery—two from defendant and two from plaintiffs. Following the completion of briefing
on the motions, the court held a hearing on June 10, 2020 and the motions are ready for
disposition. While the motions present overlapping issues, the court will address each
individually in turn, proceeding in order of filing date.
 The first motion pending before the court is defendant’s motion for a protective order
precluding depositions under plaintiffs’ Rule 30(b)(6) deposition notice. See Def.’s Mot. for
Protective Order, ECF No. 291. Plaintiffs oppose this motion, see Pls.’ Resp. to Mot. for
Protective Order, ECF No. 303, and defendant filed a reply, see Def.’s Reply to Pls.’ Resp. to
Mot. for Protective Order, ECF No. 308. Plaintiffs’ deposition notice seeks the designation and
production of Rule 30(b)(6) witnesses for 49 different topics, and the government objects that the
topics are overly broad, unduly burdensome, not relevant, and not proportional to determination
of just compensation. The government also contends that the notice requires it to provide legal
analysis and conclusions and to speculate as to future decision-making by numerous federal
agencies, noting that plaintiffs’ request relates to the work of at least 20 different federal
agencies. See Def.’s Mot. for Protective Order. at 1-2. This motion is GRANTED IN PART and
DENIED IN PART.

Plaintiffs’ request is, among other things, overly broad and seeks minimally relevant
information. Their request seeks information about essentially every flowage easement owned
by defendant and apparently relates to 977 federal flood control projects. Def.’s Mot. for
Protective Order at 6. This information would be a disproportionally large production burden to
place on defendant compared to the limited utility it would have on the issues at hand. Plaintiffs
have provided no adequate reason why they need information about other easements and other
flood control projects to determine their potential rights for this flood control project. Therefore,
their request should be limited to information pertaining directly to the easement at issue here.

Plaintiffs also seek a witness to provide testimony about defendant’s use of “offsets,”
things like federal grants and other financial benefits plaintiffs may have received, to offset an
award of just compensation. See Def.’s Mot. for Protective Order at 8. This appears, as
defendant argues, to require defendant to disclose their legal theories for just compensation, see
id., and is not an appropriate contention request at this stage of discovery. This information is
more properly exchanged during expert discovery. Additionally, to the extent that plaintiffs
request information on federal programs not applicable to the six bellwether properties, the
request is irrelevant. Any such request should be limited to the six properties at issue here in the
just compensation phase of the case.

The remainder of defendant’s objections relate mainly to the suggestion that some of the
topics are repetitive of previous discovery efforts by plaintiffs in the phase of the case that
concerned liability. See, e.g., Def.’s Mot. for Protective Order at 14. Although duplicative
efforts are not needed, plaintiffs’ request for defendant to provide updated information is
appropriate. Defendant may have information that, for example, presents updated and completed
hydrology reviews or revisions to the Upper Buffalo Bayou Watershed flood control plan. Even
though this information may have been created after the date of taking, it is not irrelevant
because the easement is permanent and thus the risk faced by future impounded floodwaters
would likely have a bearing on the frequency of use by defendant of the flowage easement that
has been taken and therefore property value. Information relating to the Buffalo Bayou flood
control project generally that would affect the Addicks and Barker Dams and Reservoirs, or

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information directly relating to the Addicks and Barker Dams and Reservoirs, or the effects from
Hurricane Harvey on these areas, regardless of date of creation, is relevant. 1

The second pending motion is defendant’s motion to compel the production of disaster-
related casualty loss documents. See Def.’s Mot. to Compel, ECF No. 292. Plaintiffs filed a
response in opposition (“Pls.’ Resp. to Mot. to Compel”), see ECF No. 302, and defendant
replied, see Def.’s Reply to Pls.’ Resp. to Mot. to Compel, ECF No. 305. Defendant is seeking
to compel the production of documents from plaintiffs that relate to any disaster-related casualty
loss claimed by plaintiffs from Hurricane Harvey, including all federal income tax returns and
the associated worksheets, schedules, and supporting documents. Def.’s Mot. to Compel at 1-2.
Plaintiffs represent that they have provided all requested documents to defendant except their
federal income tax returns and related attachments. Pls.’ Resp. to Mot. to Compel at 1.

As plaintiffs correctly contend, their tax returns enjoy a form of qualified privilege, see
Pls.’ Resp. to Mot. to Compel at 8-9 (citing Premium Serv. Corp. v. Sperry & Hutchinson Co.,
511 F.2d 225, 229 (9th Cir. 1975), and Gattegno v. Pricewaterhousecoopers, LLP, 205 F.R.D.
70, 72-73 (D. Conn. 2001), among other precedents), and defendant has failed to present a
compelling reason as to it is they are entitled to overcome the privilege and gain access to the
documents. Defendant asserts that the tax documents are relevant to the determination of just
compensation, in that the amount of compensation should be offset by any tax benefit plaintiffs
may have received in claiming a casualty loss deduction. See Def.’s Mot. to Compel at 4-5. The
court is skeptical that such a collateral benefit would be considered as a relevant consideration in
the calculation of just compensation, see, e.g., Phillips v. Western Co. of N. America, 953 F.2d
923, 929 (5th Cir. 1992) (noting there is no “reduction in [] liability by any amounts the plaintiff
receives from a source collateral to, or independent of, the tortfeasor”), but further, this tax
information can be sought by defendant through other, less intrusive, means.

Contrastingly, direct payments from federal programs may be relevant to the calculation
of just compensation, and plaintiffs should provide defendant with requested documents
pertinent to direct payments to the extent they have not yet done so. Consequently, defendant’s
motion to compel is GRANTED IN PART and DENIED IN PART, in that plaintiffs are
compelled to provide only documents they have not yet provided that pertain to any direct
federal program payments they may have received, but they do not need to provide the requested
tax documents.

The third pending motion before the court is plaintiffs’ motion to compel the production
of documents. See Pls.’ Mot. to Compel Documents, ECF No. 298. Defendant opposes this
motion. See Def.’s Resp. to Mot. to Compel Documents, ECF No. 307. Plaintiffs seek to
compel the production of documents related to six different topic areas: (1) updated appraisals
and flood damage estimates of the upstream area; (2) the government’s claimed offsets; (3)

1
To the extent that defendant seeks to assert the deliberative process privilege for some of
this information, it has not done so properly. If defendant believes information is protected by
the deliberative process privilege, it can make a proper assertion of the privilege when the time
arises. See, e.g., Marriot Int’l Resorts, L.P. v. United States, 437 F.3d 1302 (Fed. Cir. 2006);
Chao v. Westside Drywall, Inc., 254 F.R.D. 651, 657 (D. Or. 2009).

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documents relating to the application of the Uniform Relocation Act; (4) updated project analysis
and data relating to the risk of flooding; (5) updated upstream inundation maps and datasets; and
(6) real property records relating to a number of the government’s flowage easements. Pls.’ Mot.
to Compel Documents at 1-2. The arguments presented by the parties with regard to these
categories of documents echo those presented by defendant’s motions, and thus the reasoning set
out supra, also applies. As to categories 1, 4 and 5, just as with the first motion, regardless of
date of creation, defendant shall provide documents it has if they contain information that relates
to the amount of risk of future flooding at the time of taking. 2 Similarly for category 6, just as
with the first motion, plaintiffs’ requests should be limited to only those documents that relate to
the easement at issue in this case; defendant is not required to provide information about other
easements or flood control projects. For category 2, defendant represents that is has already
produced all documentation it has regarding benefits plaintiffs received that might serve as
offsets, and thus, there are no further documents to produce. Def.’s Resp. to Mot. to Compel
Documents at 10. Lastly, defendant correctly asserts that there are no relevant documents to
produce regarding category 3, because the Uniform Relocation Act is inapplicable to the means
of actually determining just compensation. See id. at 10-11. Thus, this motion is GRANTED IN
PART and DENIED IN PART, in line with the limitations set forth above.

The last pending motion before the court is plaintiffs’ motion to compel answers to four
of its interrogatories. See Pls.’ Mot. to Compel Interrogatories, ECF No. 299. Plaintiffs seek to
compel the government to answer various interrogatories related to what it contends should be
the amount of just compensation. Defendant objects to this motion, see Def.’s Resp. to Mot. to
Compel Interrogatories, ECF No. 306, arguing that these interrogatories call for the disclosure of
purely legal theories, id. at 1. Defendant’s objections have merit. While there is no question of
relevance here, plaintiffs appear to be seeking information that either concerns pure questions of
law or is premature. The information plaintiffs seek necessarily will be disclosed during expert
discovery. Therefore, this motion is DENIED. Plaintiffs are permitted, however, to put forth
appropriate contention interrogatories that are limited to questions of mixed fact and law. For
example, plaintiffs can ask about the subjects and factual predicates related to relevant federal
program offsets. But it is premature and inappropriate to ask essentially for the instructions that
defendant will give to its expert.

For the reasons stated, defendant’s motion for a protective order is GRANTED IN PART
and DENIED IN PART, and defendant’s motion to compel the production of disaster-related
casualty loss documents is GRANTED IN PART and DENIED IN PART. Plaintiffs’ motion to
compel the production of documents is GRANTED IN PART and DENIED IN PART and
plaintiffs’ motion to compel the government to answer interrogatories is DENIED.

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

2
See supra at 3 n.1, regarding any claim of the deliberative process privilege.

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