In the United States Court of Federal Claims
No. 16-75L
Filed: January 4, 2018
) Keywords: RCFC 37; Motion to Compel;
ROGER BIRDBEAR, et al., ) Discovery.
)
Plaintiffs, )
)
v. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
David C. Smith, Kilpatrick Townsend & Stockton LLP, Washington, DC, for Plaintiffs. Charles
W. Galbraith, Kilpatrick Townsend & Stockton LLP, Washington, DC, and Dustin T. Greene,
Kilpatrick Townsend & Stockton LLP, Winston-Salem, NC, Of Counsel.
Jody H. Schwarz, Natural Resources Section, U.S. Department of Justice, Washington, DC, with
whom was Jeffrey H. Wood, Acting Assistant Attorney General, for Defendant. Dedra S.
Curteman, Natural Resources Section, U.S. Department of Justice, Washington, DC, Thomas A.
Benson, Environmental Enforcement Section, U.S. Department of Justice, Washington, DC, and
Holly Clement, Office of the Solicitor, U.S. Department of the Interior, Washington, DC, Of
Counsel.
OPINION AND ORDER
KAPLAN, Judge.
Before the Court is Plaintiffs’ motion to compel the production of documents and request
for an expedited hearing. In their motion, Plaintiffs seek an order compelling the government to
produce “all outstanding documents responsive to Plaintiffs’ document requests” within twenty
days of the issuance of the order and request that the Court award Plaintiffs attorneys’ fees and
costs. Pls.’ Mot. to Compel Produc. of Docs. & Req. for Expedited Hr’g (Pls.’ Mot.) at 1, 6, ECF
No. 115. They also request an expedited hearing on their motion. For the reasons set forth below,
Plaintiffs’ motion is DENIED.
DISCUSSION
In their motion, Plaintiffs complain of the government’s failure to timely produce
documents requested last March, with a particular emphasis on tens of thousands of emails that
the government has already stated may be responsive to Plaintiffs’ document requests. They also
assert that the government has made misrepresentations to them and to the Court regarding its
efforts to comply with Plaintiffs’ requests.
The Court agrees with Plaintiffs that the pace of the government’s production of
documents, particularly emails, has not been optimal. Plaintiffs made their requests for the
production of documents on March 6, 2017. Joint Status Report to the Court at 1, ECF No. 75.
The parties subsequently agreed that the government would produce the documents on a rolling
basis and, at their request, the Court entered a Stipulated Order governing the discovery of ESI
on June 23, 2017. See ECF No. 93. That Order included the names of the custodians of the
documents the parties had requested, as well as agreed upon search terms. According to the
government, the search terms that the parties initially agreed upon generated an unwieldy
number of emails, and the parties subsequently agreed to modify those terms at the beginning of
October 2017. United States’ Opp’n to Pls.’ Mot. at 7–9, ECF No. 123.
In a Joint Status Report filed on October 3, 2017, the government represented that
“through the week of October 31, 2017,” it would review the “approximately 60,000 potentially
responsive documents that were identified in its google email system search,” “with the goal of
producing the documents to Plaintiffs by the first week of November, 2017,” and that it was
“working on arrangements to produce some of the emails earlier during the week of October 15,
2017.” Joint Status Report at 2, ECF No. 111. According to Plaintiffs, however, as of the date
that they filed the present motion to compel, November 20, 2017, Plaintiffs had not yet received
from the government any of these 60,000 potentially responsive emails. Pls.’ Mot. at 1. Further,
based on the declaration of Tony Irish, an attorney in the Department of Interior’s Office of the
Solicitor with responsibility for electronic discovery in this case, as of December 14, 2017, the
Department was still reviewing for responsiveness and privilege some 95,000 emails, 85,000 of
which it did not identify until the preceding week. Decl. of Tony Irish ¶¶ 1, 4, 9–10, ECF No.
123-3. In addition, it appears that the government did not arrange for dedicated personnel to
review the emails for responsiveness and privilege until relatively recently. United States’ Opp’n
to Pls.’ Mot. at 9.
The government has apparently produced additional documents since Plaintiffs filed their
Motion to Compel, including, the Court presumes, some of the promised emails. Id. Nonetheless,
Plaintiffs assert that in light of the March 30, 2018 date for the close of fact discovery, the
government’s delay in producing the emails will hamper them in their conduct of depositions of
government and third party witnesses, and in determining whether additional discovery is
required. They are also concerned that unless this Court sets a firm deadline for the production of
the remaining documents, further delays will ensue.
The Court does not agree with Plaintiffs that the government has deliberately misled the
Plaintiffs or the Court regarding its efforts to comply with Plaintiffs’ document production
requests. The agreement between the parties was for a rolling production of documents, and it
appears that adjustments had to be made to the ESI search terms in September or October of
2017 to reduce the volume of emails the government was required to review. To be sure, certain
“goals” identified by the government for the production of emails in October and November
were not realized, but the Court does not believe that the government’s conduct can reasonably
be characterized as a failure to cooperate in discovery within the meaning of Rule 37 of the
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Rules of the Court of Federal Claims. Accordingly, Plaintiffs’ motion to compel and for an
expedited hearing is DENIED.
Nonetheless, in the interest of the efficient completion of the discovery process, the
Court agrees that it would be appropriate to set a deadline for the government to complete its
production of documents. In addition, the Court will extend the deadline for fact discovery by
forty-five days, to permit Plaintiffs to review the documents produced for purposes of
depositions or potential further discovery.
Accordingly, the government shall complete production of all documents responsive to
Plaintiffs’ March 6, 2017 requests no later than February 9, 2018. In addition, the time for
completion of fact discovery shall be extended by forty-five days, to May 14, 2018. The parties
shall file a joint status report no later than February 12, 2018, advising the Court of the status of
discovery and any other relevant matters that require the Court’s attention.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
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