MOTION TO COMPEL GRANTED IN PART:  September 11, 2025
CBCA 7915, 8303
VENERGY GROUP, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for
Appellant.
Jared M. Levin, Office of General Counsel, Department of Veterans Affairs,
Brockton, MA, counsel for Respondent.
LESTER, Board Judge.
ORDER1
Respondent, the Department of Veterans Affairs (VA), filed a motion on July 11,
2025, to compel appellant, Venergy Group, LLC (Venergy), to produce additional documents
1 This order is being published to assist in providing greater transparency to the
public about the manner in which the Board has addressed issues in cases before it. 
Nevertheless, although single-judge orders like this one are binding in the appeals in which
they are issued, they are, consistent with Board Rule 1(d) (48 CFR 6101.1(d) (2024)), not
precedential in other appeals before the Board.

CBCA 7915, 8303 2
in response to nine document production requests that the VA previously served.  After the
parties completed briefing on the motion, the Board conducted a status conference with the
parties to discuss the outstanding discovery disputes and to ensure that the Board understood
exactly what the VA was seeking, the basis and scope of Venergy’s objections, and the
relevance of the requested documents.  Following that conference, and based upon the
Board’s additional review of the record, the Board grants the motion to compel in limited
part but otherwise denies the motion.
Background
These two consolidated appeals arise out of contract no. 36C24818D0112 and, more
specifically, task order no. 36C24819N1141 (the task order) under that contract.  Under the
task order, which the VA awarded on September 30, 2019 (with performance beginning in
December 2019), Venergy was to design and construct major renovations to Research
Building No. 2 at the James A. Haley VA Medical Center in Tampa, Florida.
In CBCA 7915, Venergy challenges the VA contracting officer’s July 28, 2023,
decision terminating the task order for default and asks us to convert it to a termination for
convenience.  In CBCA 8303, Venergy seeks an equitable adjustment of just over $4 million
for 989 days of excusable and compensable delay to Venergy’s performance of the contract,
for which Venergy claims that the VA is responsible.  As damages for these alleged delays,
Venergy seeks to recover general conditions costs (plus an overhead markup) and unabsorbed
home office overhead pursuant to the formula set forth in Eichleay Corp., ASBCA 5183,
60-2 BCA ¶ 2688 (plus a profit markup), as well as attorney fees, consultant and expert
witness fees, and interest under the Contract Disputes Act (CDA), 41 U.S.C. § 7109 (2018). 
In the contracting officer’s decision denying the claim at issue in CBCA 8303, dated
December 13, 2024, the VA contracting officer asserted a government claim in the amount
of $1,842,960.31, which he determined represented the “actual damages [to the VA] because
of Venergy’s failure to complete the Project by the agreed-upon Contract completion date.” 
Both Venergy’s equitable adjustment request and the VA’s monetary claim are at issue in
CBCA 8303.  Venergy has not submitted a termination for convenience settlement proposal
to the VA.
The parties have been engaged in active discovery since November 2024.
On July 11, 2025, the VA filed a motion to compel Venergy to produce additional
documents in response to nine previously served production requests, which were labeled
request nos. 8, 12, 16, 28, 33, 34, 35, 40, and 42.

CBCA 7915, 8303 3
Requests nos. 8, 16, 28, 34, and 42 all seek the production of financial or cost
information for the contract, including (i) labor reports, manpower reports, payroll records,
and job cost reports; (ii) all support for the amounts claimed in CBCA 8303, including all
unabsorbed home office overhead rates, equipment rates, labor rates, and subcontractor costs;
(iii) a transaction detail report for all costs that Venergy incurred on the project; (iv) all labor
and timekeeping records, such as time cards, for Venergy’s employees who worked on the
project; and (v) transaction-level detail for Venergy’s home office overhead, general
conditions, and other indirect cost pools.  Because convenience termination settlement costs
are not at issue in these appeals, Venergy does not believe that most of the information that
these requests seek are relevant to the damages claims before us.  Nevertheless, in response
to the requests, Venergy produced various documents, including a 250-page job cost report
for the project, that it believes satisfy the requests.  Importantly, in response to the VA’s
objections that the production is incomplete, Venergy has invited the VA to search its
accounting system (which relies on the Foundation construction accounting software
program) for any additional information, beyond what Venergy has already produced, that
the VA believes it needs.
Request no. 12 seeks production of “all documents related to any labor” that either
Venergy or its subcontractors and/or suppliers provided on the project, including “salary and
benefits data, payroll data, timesheets, timecards, payroll reports, work reports, invoices,
purchase orders, quotations, receipts, cancelled checks, bills, accounting records, and
expense reports.”  Similarly, request no. 33 seeks “all labor and timekeeping documents (e.g.,
timecards) and data (electronic export) maintained by Venergy for the duration of the
Project.”  In response, Venergy produced accounting ledgers for its labor costs as well as
time reports and daily logs showing when and what work was done.  The VA claims that the
reports and logs actually produced contain gaps and are missing the time of individuals that,
elsewhere in the appeals, Venergy has identified by name and number of hours.  Although
Venergy did not in its response to the VA’s motion to compel indicate that the VA would be
allowed to search for such information in Venergy’s Foundation accounting system, we were
told during the recent status conference that the types of documentation sought here would
be found there.
Requests nos. 35 and 40 seek, for the period from 2017 to 2024, “all audited and/or
unaudited financial statements prepared for or by Venergy” and “all company financial
forecasts and budgets prepared by or for Venergy . . . for all work Venergy was performing
or expecting to perform,” including “any company or board meeting minutes related to
company forecasts and plans to pursue new jobs.”  Venergy produced responsive documents
for the years 2020 through 2024, but it objects to requests for such documents from 2017,
2018, and 2019 as irrelevant to a task order under which performance did not commence
until December 2019.  In its reply brief, the VA complained that, for some of the audit

CBCA 7915, 8303 4
reports and documents that were produced, Venergy (without explanation) redacted
information, even though there is a protective order in these appeals that would allow
Venergy to shield and protect any sensitive information from further disclosure.  Venergy has
indicated that it will fix that and provide unredacted copies.
Venergy filed its response to the motion to compel on August 5, 2025, and the VA,
following a request for an enlargement of time, filed its reply on September 4, 2025.  The
Board conducted a conference with the parties on September 8, 2025, to discuss the parties’
disputes.  During that conference, each party made some concessions that are reflected
below.
Discussion
I. Standards of Review in Discovery Disputes
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 
Since September 17, 2018, Rule 13(b) of the Board’s rules have provided that “[u]nless
otherwise ordered, the scope of discovery is the same as under Rule 26(b)(1) of the Federal
Rules of Civil Procedure.”  48 CFR 6101.13(b) (2024).  Accordingly, the two factors that we
consider when resolving a discovery dispute are (1) relevance and (2) proportionality.
Proportionality “‘focuses on the marginal utility of the discovery sought,’” and it
“goes hand-in-hand with relevance, such that ‘the greater the relevance of the information
in issue, the less likely its discovery will be found to be disproportionate.’”  In re Zimmer
M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology & Versys
Femoral Head Products Liability Litigation, No. 18-MD-2859, et al., 2020 WL 1812801,
at *2 (S.D.N.Y. Apr. 9, 2020) (quoting Vaigasi v. Solow Management Corp.,
No. 11-Civ.-5088, 2016 WL 616386, at *14 (S.D.N.Y. Feb. 16, 2016)).
II. Requests for Production Nos. 8, 16, 28, 34, and 42
Five of the production requests—nos. 8, 16, 28, 34, and 42—seek to have Venergy
conduct additional searches for, locate, and physically produce additional financial and
project cost documents from Venergy’s accounting systems.  Venergy has represented on
several occasions that Venergy will make its Foundation accounting system available to the

CBCA 7915, 8303 5
VA and that the VA may review that system to determine what other information, beyond
what Venergy has already produced, it wants.  Venergy’s concession makes it unnecessary
for us to consider either relevance or proportionality in resolving this discovery dispute.
Venergy’s offer to make its system available for the VA to search for what it wants
is not an unusual way of responding to a document production request and of satisfying the
responding (or producing) party’s production obligation.  Rule 34 of the Federal Rules of
Civil Procedure provides that “[u]nless otherwise stipulated or ordered by the court, . . . [a]
party must produce documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the request.”  Fed. R. Civ. P.
34(b)(2)(E)(i).  This rule “expressly grants the producing party the choice”—it can produce
documents as kept in the usual course of business, or it can organize and label them.  Rowlin
v. Alabama Department of Public Safety, 200 F.R.D. 459, 462 (M.D. Ala. 2001).  Although
a requesting party “may specify the form or forms in which electronically stored information
is to be produced,” Fed. R. Civ. P. 34(b)(1)(C), the producing party is not necessarily
obligated to honor that request.  See id. 34(b)(2)(D).  Although Rule 34 encourages parties
ultimately to agree on the form in which documentation will be produced, see Fed. R. Civ.
P. 34(b) advisory committee’s note to 2006 amendment, ultimately, “it is up to the producing
party to decide how it will produce its records, provided that the records have not been
maintained in bad faith.”  Rowlin, 200 F.R.D. at 462; see Doe v. District of Columbia, 231
F.R.D. 27, 36 (D.D.C. 2005) (“As long as [the producing party] produced the documents ‘as
they are kept in the usual course of business,’ he was in compliance with the discovery
rules.” (quoting Fed. R. Civ. P. 34(b))); 8B Charles A. Wright, Arthur R. Miller, & Richard
L. Marcus, Federal Practice & Procedure § 2213, at 190 (3d ed. 2010) (“[I]n the first
instance the producing party should retain the right to choose between the production formats
authorized by Rule 34(b).”); Fed. R. Civ. P. 34(b) advisory committee’s note to 2006
amendment (The producing party’s production should generally be viewed as adequate if the
manner of production makes the material “reasonably usable” and available to the requesting
party.).
The VA’s request mirrors the requesting party’s document production objection in
Reid v. Richardson-Merrell, Inc., 37 F.R.D. 363 (N.D. Ga. 1964), which the court there
ultimately rejected.  The producing party had “offered to make a complete microfilm of [its]
records available to [the requesting party] for inspection.”  Id. at 363.  The requesting party
objected on several grounds, the “most noteworthy and material” of which was “that many
of the documents sought [were] not specifically identified and [were] contained in some
107,000 pages of [the producing party’s] records.”  Id.  The court, considering the version
of Rule 34 then in effect, “deem[ed] such a procedure [providing microfilm copies of records
as maintained in the ordinary course of business] fair and advantageous to both parties to
enable [the requesting party] to more specifically identify the documents sought in” its

CBCA 7915, 8303 6
various production requests “while at the same time relieving [the producing party] of the
cost of searching its records.”  Id.  
The VA asserts that it should not have to expend the “time and energy” to conduct
searches in Venergy’s accounting systems and that, because “the requested discovery is
reasonably accessible [to Venergy]” and “is not unduly burdensome,” it is only fair that
Venergy put in the effort to find more documents and that making the VA conduct searches
“improperly shifts the burden of production to the requesting party.”  Respondent’s Motion
to Compel (July 11, 2025) at 2.  The VA’s vision is not, however, what the Federal Rules of
Civil Procedure contemplate.  “The plain language of [Rule 34] indicates that [the [producing
party] need only have made the requested documents available for the [requesting party] to
inspect and” that the requesting party will then have to arrange “to make [its] own copies”
of the documents that it selects to add to its discovery files.  In re Application for Water
Rights of Hines Highland Limited Partnership, 929 P.2d 718, 727 (Colo. 1996) (en banc)
(emphasis added) (citing Obiajulu v. City of Rochester, 166 F.R.D. 293, 297 (W.D.N.Y.
1996) (“Rule 34 allows the plaintiff ‘to inspect and copy’ relevant documents and does not
require a responding party to pay for copying costs of voluminous materials.”); Delozier v.
First National Bank, 109 F.R.D. 161, 164 (E.D. Tenn. 1986) (If, after an inspection of
records requested for production, the requesting party desires that portions be photocopied,
then such expense will be borne by the requesting party); Lenard v. Greenville Municipal
Separate School District, 75 F.R.D. 448, 451 (N.D. Miss. 1977) (The availability for
inspection and/or copying of requested records will satisfy the request for production.)).2
Even if we could require Venergy to conduct more fulsome searches of documents
and information contained in Venergy’s accounting systems, it is not clear from the VA’s
motion or its reply brief exactly what “more” it is looking for.  The VA has not identified a
specific document or category of documents that it contends is missing from the existing
production.  We see no basis for compelling Venergy to spend extensive amounts of time
2 A tribunal may, in limited circumstances, shift some of the costs of searching
for and producing documents from the producing party to the requesting party to protect the
producing party “under Rule 26(c) [of the Federal Rules of Civil Procedure] . . . from ‘undue
burden or expense’ . . . , including orders conditioning discovery on the requesting party’s
payment of the costs of discovery.”  Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358
(1978).  We see nothing in the Rules that contemplates shifting document production costs
normally covered by the requesting party away from the requesting party and to the
producing party.  The requesting party always has the ability to limit its discovery costs by
narrowing and limiting the scope of documents that it wants the producing party to make
available.  The producing party does not always have the same capability.

CBCA 7915, 8303 7
conducting random searches of its systems without the benefit of search terms that the VA
wants Venergy to use or the identification of missing information.  Here, Venergy is giving
the VA the ability to conduct such searches itself.  By making its systems available to the
VA, Venergy has fulfilled its production obligation in response to requests for production
nos. 8, 16, 28, 34, and 42.
III. Request Nos. 12 and 33
Request nos. 12 and 33 are not seemingly very different from the production requests
that were just discussed above—they seek labor and timekeeping records.  Yet, Venergy, in
its response to the VA’s motion to compel, did not offer to make its accounting system
available for searches for documents responsive to request nos. 12 and 33.  Given that
Venergy is making its accounting system available to the VA to search for documents
responsive to request nos. 8, 16, 28, 34, and 42, we direct it to allow the VA to search for
additional documents responsive to request nos. 12 and 33 at the same time.
The one category of information that, during the Board’s conference with the parties,
counsel for Venergy identified as something that would be missing from the Foundation
accounting system is the names of individuals who billed time to Venergy’s home office and
whose time is included in Venergy’s unabsorbed home office overhead claim.  The Board
accepts Venergy’s offer at the conference to obtain those names, to the extent that it can
locate such information, and provide to the VA the names and any other related, but
undisclosed, responsive information about charges to home office overhead.
IV. Request Nos. 35 and 40
Request nos. 35 and 40 deal with financial audit reports and related information from
2017 through 2024.  Venergy asserts that it produced responsive documents from 2020
through 2024 but does not see the relevance of documents from 2017, 2018, or 2019.  In
response, the VA indicated that some of the reports that Venergy produced were redacted.
To the extent that Venergy previously produced reports that remain redacted, it shall
produce unredacted copies of those reports, subject, if needed, to the protective order that the
Board previously entered in these appeals.
With regard to reports and related information from 2017 through 2019, the VA
argues that these documents are relevant to these appeals because of Venergy’s home office
overhead claim.  The VA asserted at the conference that it needs audit reports from 2017,
2018, and 2019 because it is looking for trends in how Venergy bills and/or accounts for its
home office overhead.  Alas, the financial audit reports that the VA seeks do not target home

CBCA 7915, 8303 8
office overhead costs—they are much broader and general than that—and we cannot see
what useful information the VA could glean about home office overhead from them.  Even
if the VA could find something relevant in them, it has not explained how information about
past “trends” in home office overhead is necessary or relevant to the home office costs that
Venergy incurred from 2020 through 2024.  The Eichleay formula upon which Venergy is
relying to support its unabsorbed home office overhead claim is a cost construct involving
a mathematical formula, with an additional “standby” requirement.  Jackson Construction
Co. v. United States, 62 Fed. Cl. 84, 96-97, 99 (2004).  The VA did not provide any
explanation as to why or how pre-2020 “trends” could affect Venergy’s 2020 through 2024
home office overhead calculations.
“[W]hen relevancy [of a production request] is not readily apparent, the party seeking
discovery has the burden to show the relevancy of the request.”  Cunningham v. Standard
Fire Insurance Co., No. 07-CV-02538, 2008 WL 2668301, at *4 (D. Colo. July 1, 2008). 
The VA has not met that burden here.  Venergy need not produce financial audit reports or
related information for 2017, 2018, and 2019.
Decision
For the foregoing reasons, the VA’s motion to compel is GRANTED IN PART.
In response to request nos. 8, 12, 16, 28, 33, 34, and 42, Venergy shall make
project-related materials in its Foundation construction accounting system available to the
VA at a mutually convenient time and place, but no later than September 30, 2025, to allow
the VA to conduct searches for documents responsive to those requests.  Venergy shall also,
no later than September 30, 2025, provide the VA with the names of employees who billed
their time to home office overhead pools.  The VA’s motion to compel with regard to these
document production requests is otherwise DENIED.  To the extent that, in any of these
requests, the VA seeks information from 2017, 2018, and 2019, its motion to compel such
production is DENIED.
In response to request nos. 35 and 40, to the extent that Venergy has previously
produced redacted copies of financial audit reports and related information, it shall, no later
than September 30, 2025, again produce those documents but without redactions (subject to
the existing protective order, if needed).  The VA’s motion to compel further production
through request nos. 35 and 40 is otherwise DENIED.

CBCA 7915, 8303 9
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge