In the United States Court of Federal Claims

No. 14-388L 

(Filed: January 31, 2017) 

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WILLIAM C. HARDY & BERTIE ANN 

HARDY et al., 

Plaintiffs, 

v.

THE UNITED STATES,

Defendant.

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Discovery; Motion to Compel; RCFC 26; 

RCFC 37; Fed. R. Evid. 401

ORDER

On May 23, 2016, the court issued a scheduling order for further proceedings. That order 

set deadlines for, among others, fact discovery to be completed by no later than Friday, February 

24, 2017, and for expert discovery to be completed by no later than Thursday, June 1, 2017. On 

December 22, 2016, the court issued an order (1) amending the deadline for the exchange of 

preliminary exhibit and witness lists, setting such deadline for no later than Monday, May 8, 

2017; and (2) adopting the parties’ agreement that the number of plaintiff landowner witnesses 

designated to testify at trial will be ten or less. 

After amending its discovery requests and conferring with counsel for plaintiffs, 

defendant now moves the court—pursuant to Rule 37(a)(3)(B) of the Rules of the Court of 

Federal Claims (“RCFC”)—to compel plaintiffs to produce certain documents and respond to 

certain interrogatories in attempting to obtain discovery from plaintiff landowners regarding 

information in their possession concerning the market value and characteristics of their property. 

Plaintiffs object to the specific discovery requests at issue as vague, acknowledge that “all” 

plaintiff landowners “will have and do have discoverable information concerning their 

properties,” Pls.’ Resp. 2-3, and argue that the information requested has already been produced 

during the Claims Book process or will be produced during expert discovery. The motion has 

been fully briefed, and the court considers oral argument unnecessary. 

Title V of the RCFC governs discovery in this court. Specifically, RCFC 26(b)(1) 

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 [various 

factors].” Information is relevant if “it has any tendency to make a fact more or less probable 

than it would be without the [information]” and such fact “is of consequence in determining the 

action.” Fed. R. Evid. 401; accord Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 

(1978) (explaining that relevant information includes “any matter that bears on, or that 
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reasonably could lead to other matter that could bear on, any issue that is or may be in the case”). 

Moreover, “[q]uestions of the scope and conduct of discovery are . . . committed to the discretion 

of the trial court.” Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984). 

The Court of Federal Claims “generally has afforded a liberal treatment to the rules of discovery 

. . . .” Securiforce Int’l Am., LLC v. United States, 127 Fed. Cl. 386, 400 (2016); accord

Herrmann v. United States, 127 Fed. Cl. 22, 40 (2016) (“A court must be careful not to deprive a 

party of discovery that is reasonably necessary to afford a fair opportunity to develop and 

prepare the case.” (internal quotation marks omitted)). Written interrogatories “may relate to any 

matter that may be inquired into under RCFC 26(b).” RCFC 33(a)(2). Responding parties “must 

provide true, explicit, responsive, complete, and candid answers . . . directly and without evasion 

in accordance with information that [such] party possesses after due inquiry.” Lakeland 

Partners, L.L.C. v. United States, 88 Fed. Cl. 124, 132 (2009) (internal quotation marks omitted). 

Similarly, a party may request production of documents “in the responding party’s possession, 

custody, or control” that are “within the scope of RCFC 26(b).” RCFC 34(a). Requests must be 

reasonably particular, and responding parties “[have] the duty to respond to such requests to the 

extent the requests are not objectionable.” Dairyland Power Co-op v. United States, 79 Fed. Cl. 

722, 728 (2007).

However, the Court of Federal Claims has also “recognized that discovery has ultimate 

and necessary boundaries.” Securiforce Int’l Am., 127 Fed. Cl. at 400 (internal quotation marks 

omitted). The court “must limit the frequency or extent of discovery” allowable under the RCFC 

if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some 

other source that is more convenient, less burdensome, or less expensive.” RCFC 26(b)(2)(C). 

A party may object to discovery requests—including interrogatories, RCFC 33(b)(4), and 

document production requests, RCFC 34(b)(2)(C)—if that party believes such requests are 

improper. 

The issue currently before the court is whether defendant’s requests are within the scope 

permitted by RCFC. Specifically, the parties dispute (1) whether the terms “meaningful 

characteristics” and “market data” are vague and (2) whether defendant is entitled to discovery of 

information that was made available through the Claims Book process or is likely to be reflected 

in expert reports when appraisals are completed. 

The court finds that the terms “meaningful characteristics” and “market data” as defined 

by defendant in its discovery requests are sufficiently clear to allow plaintiffs to formulate a 

response. Plaintiffs’ use of those terms in describing what will be produced by the appraiser 

during expert discovery, see Pls.’ Resp. 2-3, demonstrate that those terms give plaintiffs ample 

notice of the information that defendant seeks to obtain. The court further finds that such 

information is within the scope of discovery permitted by RCFC 26(b)(1) because the 

information sought directly pertains to valuation of plaintiffs’ property interests. Defendant thus 

has a right to information in the “possession, custody, or control,” Def.’s Reply 2, of plaintiffs 

that are responsive to defendant’s discovery requests, to the extent that such requests are not 

limited by RCFC 26(b)(2)(C).

 
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Plaintiffs are correct in their observation that appraisals are another source of discovery 

beyond interrogatories and document production requests, and that duplication should be 

avoided. However, plaintiffs’ reliance on that proposition in arguing that they need not respond 

to defendant’s discovery requests is unpersuasive because fact discovery is distinct from expert 

discovery. In the discovery requests currently at issue, defendant seeks facts, not expert 

opinions. See, e.g., Ark. Game & Fish Comm’n v. United States, 74 Fed. Cl. 426, 430 (2006) 

(discussing the “interaction of fact and expert discovery” and drawing a distinction between facts 

and expert opinions based on those facts). In addition, “parties are entitled to develop their 

respective cases as they deem appropriate . . . , including to avail themselves of all forms of 

discovery that are permitted under the rules of the court.” Estate of Rubinstein v. United States, 

94 Fed. Cl. 51, 53 (2010). Moreover, parties that file lawsuits can expect to be served with 

discovery requests. Cf. Consol. Edison Co. of N.Y. v. United States, 90 Fed. Cl. 228, 257 (2009) 

(discussing each party’s affirmative duty to preserve materials “reasonably likely to be requested 

during discovery” (internal quotation marks omitted)). Defendant’s requests are within the scope 

permitted by the RCFC, are not unreasonable, and impose minimal burden upon the plaintiff 

landowners. Therefore, defendant is entitled to full compliance with its requests for production 

of documents and interrogatories currently at issue. 

To the extent that such information has been actually produced—e.g., during the Claims 

Book process or via initial disclosures—and is already in defendant’s possession, it is duplicative 

and need not be produced again. However, responses to interrogatories are necessary. It is 

irrelevant that ten or fewer landowners will be designated to testify as fact witness at the 

valuation trial and that responses can be elicited during their depositions, because timely 

responses to interrogatories will undoubtedly narrow the focus of those depositions. 

In sum, plaintiffs must fully comply with defendant’s discovery requests on or before 

February 24, 2017, pursuant to the scheduling order, to the extent that they have not already

done so. Therefore, the court GRANTS IN PART and DENIES IN PART defendant’s 

December 29, 2016 motion to compel. All deadlines set forth in the existing scheduling order 

remain in place.

IT IS SO ORDERED.

 s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

 Judge