# In the United States Court of Federal Claims

Filed: J une 26 , 2018

ORDER

On June 22, 2018, Plaintiffs filed a Status Report in the above

- captioned case t hat notified

the court of two unresolved disc overy issues. The first is sue c oncerns Electronically Stored Information ( “ ESI ” ). The June 22, 2018 Status Report states that the “ Govern ment ’ s electronic communications including attachments, according to [the] Government, can only be located through ESI searches utiliz ing relevant search terms. ” ECF No. 99 at 2. T he parties have spent several weeks negotiating ESI search terms “ and a process . . . whereby [the] Government would run a test utilizing search terms, report on the resu lts to determine if the terms needed to be modified to yield the desired results; and then, following the test run, the full search would be completed. ” ECF No. 99 at 2. This lengthy negotiation process was necessitated, because the

“ G overnment has taken the position that it will only undertake one search[.] ” ECF No. 99 at 2. To complicate this process, the Government now has taken the position that it “ cannot provide any definite date as to when the ESI search will be completed an d when the electronic communications and documents will be produced. ” ECF No. 99 at 2.

The June 22, 2018 Status Report also states that the Plaintiffs served the Government with requests for documents, including:

Request No. 4: Please produce all documents and ESI in your possession, custody, or control relating to or reflecting communications regarding any induced surcharges, as that term is used in Water Control Manual 7

- 05(b), associated with

the Reservoirs for the time pe riod between August 25, 201 7 , and October 17, 2017.

Request No. 13: Communi cations, including but not limited to text messages and emails . . . , sent or received between August 25, 2017 and September 4, 2017 by any of the following individuals that concern Hurrica ne Harvey, Tropical Storm Harvey , the Addicks and Barker reservoirs and dams, flooding or related matters: IN RE DOWNSTREAM ADDICKS AND BARKER (TEXAS) FLOOD

CONTROL RESERVOIRS Sub

- Master Docket No. 17

- 90 0 2 L

THIS DOCUMENT APPLIES TO:

ALL DOWNSTREAM CASES2

Richard Long, Colonel Lars Zetterstrom, Captain Charl es Ciliske, Mario

Betti ngfield, Randall Cephus, Gary Chow, Michael Kaufman, Charles Scheffler, Lori Thomas, Robert Thomas[,] and Jay Townson.

ECF No. 99 at 2

– 3. But, the “ Government did not produce the requested documents and instead advised that production of the requested information cannot occur until the ESI search es are complete[.] ” ECF No. 3.

The second unresolved discovery issue concerns the depositions of Government employees, pursuant to Rule of the United States Court of Federal Claims ( “ RCFC ” ) 30(b)(6). T he June 22, 2018 Status Report states that “ Plaintiffs scheduled the 30(b)(6) depositions of Robert

Thomas for 7/12

- 7/13 and Jeffery East fo r 7/16, and the depositions of Richard Long for 7/18. ” ECF No. 99 at 3. The Government, however, objected “ to the 30 (b)(6) topi cs identified by Plaintiffs[.] ” ECF No. 99 at 3. A fter Plaintiffs narrowed some areas of inquiry, the “ Government asserted that Plaintiffs must essentially accept and agree to all Government objections and limit the areas of inquir y before the depositions can move from being ‘ tentative ’ to being set. ” ECF No.

99 at 3.

The court will convene a telephone status conference on Friday, J u ne 29 , 2018 at 1: 00 p.m. (EDT) to address these discovery issues. Although the court will only recognize appointed

Plaintiffs’ Co

- Lead Counsel and counsel for the Government, members of the public may listen to
the s tatus conference

. The court request s that a l l callers not participating in the status conference mute their phones. The s tatus conference may be joined by dialing (88 8) 684

- 8852 , enter ing

Access Code 4779231# , and enter ing Code 1771 #

.

The court requests that Acting Assistant Attorney General Jeffrey Wood participate i n the

June 29 , 2018 status conference to address why the “ Government cannot provide any definite date as to when the ESI search will be completed an d when the electronic communications and documents will be produced

, ” and on what authority the Government will undertake only one ESI

search. The court set a later trial date in the above

- captioned case to accommodate the

Government. It ap pears to the court that the Government is not acting in good faith, but rather trying to prevent Plaintiffs from obtaining the d iscovery and facts they need to prove the elements of their case to establish jurisdiction and liability

.

In addition, by 5: 00 p.m. (EDT) t oday, June 26, 20 18

, Plaintiffs are directed to file a status report with the court that provide s:

(1) why “ any induced surcharges, as that term is used in Water Control Manual 7

- 05(b),

associated with the Reservoirs for the time pe riod between August 25, 201, and October
17, 2017

, ” as described in Plaintiffs ’ R equest F or D ocuments N o. 4 , i s relevant ;

(2) the titles and dates of employment of the individuals named in Plaint iffs ’ R equest F or
D o cuments No. 13; and

(3) copies of all requests for documents submitted by Plaintiffs to the Government that the

Government has n ot answered

.3

T he Government is also directed to file a status report with the court, by 5: 00 p.m. (EDT)

t oday, June 26, 20 18

, that provide s copies of the Governmen t ’ s objections and propos ed limitations to the areas of inquiry r egarding the 30(b)(6) depositions

.

If the Government is not willing to commence the proposed 30(b)(6) depositions by mid

July 2018, in good faith, the court is prepare d to o rder the Government to produce these witnesses

i n Wa shington, D.C

. at the United States Court of Federal Claims. The depositions will be

conducted in one of the court rooms and be open to the public. T his will afford the court physical proximity, in the event a ruling on any objection beco mes necessary.

I T IS SO ORDERED.

s/ Susan G. Braden

Susan G. Braden

Chief Judge