In the United States Court of Federal Claims

Filed: June 26, 2018

ORDER

On June 22, 2018, Plaintiffs filed a Status Report in the above-captioned case that notified

the court of two unresolved discovery issues. The first issue concerns Electronically Stored 

Information (“ESI”). The June 22, 2018 Status Report states that the “Government’s electronic 

communications including attachments, according to [the] Government, can only be located 

through ESI searches utilizing relevant search terms.” ECF No. 99 at 2. The 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 results 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 

“Government 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 and 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 period between August 25, 2017, and October 17, 2017.

Request No. 13: Communications, 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 Hurricane Harvey, Tropical Storm 

Harvey, the Addicks and Barker reservoirs and dams, flooding or related matters: 

IN RE DOWNSTREAM ADDICKS 

AND BARKER (TEXAS) FLOODCONTROL RESERVOIRS Sub-Master Docket No. 17-9002L

THIS DOCUMENT APPLIES TO:

ALL DOWNSTREAM CASES
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Richard Long, Colonel Lars Zetterstrom, Captain Charles Ciliske, Mario 

Bettingfield, 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 searches 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). The 

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 for 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) topics identified by 

Plaintiffs[.]” ECF No. 99 at 3. After 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 inquiry 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, June 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 status conference. The court requests that all callers not participating in the status conference 

mute their phones. The status conference may be joined by dialing (888) 684-8852, entering

Access Code 4779231#, and entering Code 1771#.

The court requests that Acting Assistant Attorney General Jeffrey Wood participate in 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 and 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 appears to the court that the Government is not acting in good faith, but rather 

trying to prevent Plaintiffs from obtaining the discovery and facts they need to prove the elements 

of their case to establish jurisdiction and liability. 

In addition, by 5:00 p.m. (EDT) today, June 26, 2018, Plaintiffs are directed to file a status 

report with the court that provides: 

(1) why “any induced surcharges, as that term is used in Water Control Manual 7-05(b), 

associated with the Reservoirs for the time period between August 25, 201, and October 

17, 2017,” as described in Plaintiffs’ Request For Documents No. 4, is relevant; 

(2) the titles and dates of employment of the individuals named in Plaintiffs’ Request For 

Documents No. 13; and

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

Government has not answered.
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The Government is also directed to file a status report with the court, by 5:00 p.m. (EDT) 

today, June 26, 2018, that provides copies of the Government’s objections and proposed 

limitations to the areas of inquiry regarding the 30(b)(6) depositions.

If the Government is not willing to commence the proposed 30(b)(6) depositions by midJuly 2018, in good faith, the court is prepared to order the Government to produce these witnesses 

in Washington, D.C. at the United States Court of Federal Claims. The depositions will be 

conducted in one of the courtrooms and be open to the public. This will afford the court physical

proximity, in the event a ruling on any objection becomes necessary. 

IT IS SO ORDERED.

s/ Susan G. Braden

Susan G. Braden

Chief Judge