ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE PAGE

ON APPELLANT’S MOTION TO COMPEL DISCOVERY

Lockheed Martin Aeronautics Company (LMA, appellant) asserted the claim underlying this appeal against the Air Force (Air Force, government) for allegedly excessive “over & above” work that resulted in greater costs and cumulative lack of productivity on a contract for upgrading C

- 5 Galaxy aircraft . The parties are engaged in discovery but have repeatedly come to the Board to settle disputes surrounding ongoing discovery issues. Appellant now moves to compel the Air Force to provide more complete responses to a set of interrogatories. This is not the first motion to

c ompel that has been filed in this app eal but the Board is optimistic that this will be the

final one and will guide the parties in work ing together to resolve any future discovery disputes . We grant appellant’ s motion to compel.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. We have already provided the background facts pertinent to this appeal in the Laches decision dated June 22, 2021. Lockheed Martin Aeronautics Co. , ASBCA

No. 62209, 21

- 1 BCA ¶ 37,891. Familiarity with that decision is assum ed for

Appeal of

- ) ) Lockheed Martin Aeronautics Company ) ASBCA No. 62209 )

Under Contract No. FA8625

- 07

- C

- 6471 )

APPEARANCES FOR THE APPELLANT: Stephen J. McBrady , Esq.

J. Chris Haile

, Esq. Skye Mathieson

, Esq. John Nakoneczny

, Esq.

Michelle D. Coleman

, Esq.

Crowell & Moring LLP Washington, DC

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Caryl A. Potter, III, Esq.

Lawrence M. Anderson, Esq. Danielle A. Runyan, Esq.

Trial Attorneys2 purposes of the resoluti on of this motion to compel . Appellant filed its first motion to compel on April 21, 2021. That moti on was granted by Board Order dated May 10, 2021. Over the course of this appeal, discovery has become increasingly contentious.

On June 3 , 2021, appell ant filed its second motion to compel discovery. That motion

focused on a Defense Contract Audit Agency ( DCAA ) a udit report and audit related

mater ials. That motion now appears to be moot in light of appellant receiving the requested audit report from DCAA; the Air Fo rce indicated that there are no related documents in its possession

.

2. On July 26, 2021, appellant filed a motion to compel further responses. Again, appellant is requesting the B oard to compel the government to respond to its first set of interrogatories. Appellant alleges that the bulk of the government’s initial

responses were non

- responsive and inadequate. In particular, appellant alleges that the Air Force objected to the first interrogatory and then cross

- referenced this response in

25 of the 41 interrogatories served initially (app. mot. at 5). The government’s response to interrogatory one reads in pertinent part, “Respondent object s to this interrogatory on the basis that, in addition to being unduly burdensome t o attempt to locate anyone who might be able to remember any information relevant to this interrogatory, it seeks information that could not possibly lead to the discovery of any

relevant evidence

. . . . ” (app. mot. attach. 1 at 4). Appellant further all eges that

res ponses to interrogatories 26, 27 , 28, 29, 31, and 32 are “incomplete or evasive” ( app. mot. at 15, 19

- 27).

3. On August 13, 2021

, the government responded in opposition to appellant’s motion arguing, “Each answer responds or object s to eac h discovery request in full accordance with Board Rule 8 and Federal Rule of Civil Procedure 26(b)” (gov’t

opp ’n at 4).

DECISION

I. Legal Standards

The Contract Disputes Act empowers the Board to “authorize depositions and discovery proceedings” during the course of appeals. 4 1 U.S.C. § 7105(f). Board

Rule 8 further addresses discovery needs for cases before it ; Rule 8(c)(3) provides that

“ the Board may upon motion order [a ] request for the production, inspection, and copying of any documents, electronic or otherwise, or objects, not privileged, which reasonably may lead to the discovery of admissible evidence

. . . . ”

Additionally, “ [a] lthough not binding on the Board, w e also look to the Federal Rules of Civil Procedure (FED. R. CIV. P.), and decisions addressing those rules, for guidance in discovery disputes.” Sand Point Servs., LLC, ASBCA Nos. 61819, 61820

, 21

- 1 BCA ¶ 37,785 at 183,378 (citing Thai Hai , ASBCA No . 533 75, 02

- 2 BCA ¶ 31,3 971 at 157,920; Ingalls Shipbuilding Div.

, Litton Sys

. , Inc. , ASBCA No. 17177, 73

- 2 BCA ¶ 10,205 at 48,096 ). F ED

. R. C IV

. P. 26(b) (1) allows for broad discovery subject

to certain limits; of particular consequence here are relevance and proportionality.

While r elevance is considered quite broadly , it is not without limit s

. Micro

Motion Inc. v. Kane Steel Co. , 894 F.2d 1318, 1322 (Fed. Cir. 1990) (citing Hickman v. Taylor , 329 U.S. 495, 507 (1947) )

. T he Board has previously held tha t , “ It is well established that the concept of relevance in discovery proceedings is broader than that which governs admissibility of evidence at the trial.” In galls Shipbuilding Div.,

Litton Sys

. , Inc.

, 73

- 2 BCA ¶ 10

, 205 at 48,096

. Further, “it matters not for the purposes of discovery which side’s theory of the case might ultimately be proven correct. What matters is that each side is entitled to pursue intelligible theories of the case and [ the parties] cannot, by their sole insistence, declare eviden ce undiscoverable and irrelevant merely because it does not fit their own theory of the case.” Sentis Grp.,

Inc. v. Shell Oil Co. , 763 F.3d 919, 926 (8th Cir. 2014).

In addition to relevance, discovery can be limited by proportionality. This provisio n is “not [] treated as separate and discrete grounds to limit discovery so much as indicia of proper use of discovery mechanisms

. . . . ” 8 C HARLES A LAN W RIGHT

, A RTHUR R. M ILLER & R ICHARD L. M ARCUS

, F EDERAL P RACTICE AND P ROCEDURE § 2008.1 (3d ed. 2004 ). “Judges relatively frequently limit or forbid discovery when the cost and burden seem to outweigh the likely benefit in producing evidence . . .

. [W] hen relevance has been demonstrated court s will scrutinize claims that the burden of producing reques ted information is disproportionate; and an unsupported burden objection is not a guaranteed protection against responding to discovery.” Id. The 2015 Advisory Committee Notes to Fed. R. Civ. P. 26 indicate that the 2015 amendment which “emphasize[d] the importance of proportionality

, ” id.

, was not “intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional

. The parties and the court have a collective responsibility to consider the propo rtionality of all discovery and consider it in resolving discovery disputes.” Further

, “In assessing propor tionality, Rule 26(b)

considers ‘the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to rel evant 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.’” Corinthian

- WBCM,

JV , ASBCA No. 62379, 21

- 1 BCA ¶ 37,864 at 183,8 62 (citing F ED

. R. C IV

. P

. 26(b)(1)). “[I]nformation is also proportional because it directly relates to [parties’] arguments.” Corinthian

- WBCM, JV , 21

- 1 BCA ¶ 37,864 at 183,862

.4 II. Appellant Has Shown that the Discovery Requests Are Relevant and the

Government Has Fa iled to Show that the Requests A re Disproportionate

The government’s objections to appellant’s motion to compel further responses focused on what the government views as insufficient facts for appellant to prove its

claim. Tha t is not the standard for determining the relevance of discovery. Appellant

has been clear on its intent to utilize the m easured mile approach

. I t is not for the government to decide, especially at the discovery stage, whether appellant can be

successful on its method of proof. Appellant is free to pursue its theory of the case and propound discovery that it hopes to support this theory even if the evidence is ultimately inadmissible at the hearing stage

. Ingalls Shipbuilding Div., Litton Sys

. , Inc.

, 73

- 2 BCA ¶ 10205 at 48,096. Additio nally, measured mile is not a disfavored approach before the Board ; appellant will still need to provide proof of its claim. The government’s recalcitrance to participate in discovery because it does not want to

engage with appellant on its theory of the case is insufficient argument that the requested information is irrelevant and therefore undiscoverable. LMA has made compelling arguments that the information requested through these interrogatories is

relevant to its claim and its use of the measured mile approach ( see app. mot. at 8

- 9).

Finally, t he g overnment ’s b oilerplate o bjec tions are insufficient to show these discovery requests are d isproportionate

. The government ’s opposition to appellant’s

motion focused on the relevancy of requested information so the Board is unable, at this time, to determine the veracity of the government’s generalized objection of its “unduly burdensome” discovery response s. The response to interrogatory one that is

cross

- referenced repeatedly in its other interrogatory responses

, that it was “ unduly

burdensome to attempt to locate anyone who might be able to remember any information relevant to this interrogatory

, ” d oes not indicate to us that the government has given a good faith ef fort to respond to these interrogatories or consider what actual burden the government may encounter in trying to respond. (SOF ¶ 2 ) ( emphasis

added )

CONCLUSION

Appellant’ s motion to compel further responses is granted. The government is

ordered to comply and respond to appellant’s first set of interrogatories, with the exception of interrogatories 37 and 38 which appellant indicates have been answered

.5 The government may renew objections to discovery

, as necessary , while keeping in

mind the rele vance and proportionality standards enumerated above.

Dated: October 26, 2021

REBA PAGE Administrative Judge

Armed Services Board of Contract Appeals

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman

Armed Services Board of Contract Appeals I concur

OWEN C. WILSON Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 62209

, Appeal of Lockheed Martin Aeronautics Company , rendered in conformance with the Board’s

Charter.

Dated: October 27, 2021

PAULLA K. GATES

- LEWIS Recorder, Armed Services Board of Contract Appeals