In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L

(Filed: June 29, 2020)

(NOT TO BE PUBLISHED)

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IN RE UPSTREAM ADDICKS AND 

BARKER (TEXAS) FLOODCONTROL RESERVOIRS 

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THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES

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Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles 

Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart 

Boundas Easterby, LLP, Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs. Of Counsel 

was Vuk S. Vujasinovic, VB Attorneys, PLLC, Houston, Texas. 

Kristine S. Tardiff, Trial Attorney, Natural Resources Section, Environment & Natural 

Resources Division, United States Department of Justice, Concord, New Hampshire, for 

defendant. With her on briefs were Jean E. Williams, Deputy Assistant Attorney General, 

Natural Resources Section, Environment & Natural Resources Division, United States 

Department of Justice, Washington, D.C., and William J. Shapiro, Laura W. Duncan, and Sarah 

Izfar, Trial Attorneys, Natural Resources Section, Environment & Natural Resources Division,

United States Department of Justice, Washington, D.C. 

ORDER

In this takings case involving properties damaged by impounded floodwaters derived 

from Hurricane Harvey in 2017, this court found the government liable after a trial focusing on 

thirteen bellwether plaintiffs out of the hundreds who brought suit. See In re Upstream Addicks 

& Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019) (finding liability for taking 

a flowage easement); see also In re Upstream Addicks & Barker (Texas) Flood-Control 

Reservoirs, ___ Fed. Cl. ___, 2020 WL 2079889 (Apr. 30, 2020) (delineating scope of the 

flowage easement). Currently pending before the court are four motions related to fact 

discovery—two from defendant and two from plaintiffs. Following the completion of briefing 

on the motions, the court held a hearing on June 10, 2020 and the motions are ready for 

disposition. While the motions present overlapping issues, the court will address each 

individually in turn, proceeding in order of filing date. 
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The first motion pending before the court is defendant’s motion for a protective order 

precluding depositions under plaintiffs’ Rule 30(b)(6) deposition notice. See Def.’s Mot. for 

Protective Order, ECF No. 291. Plaintiffs oppose this motion, see Pls.’ Resp. to Mot. for 

Protective Order, ECF No. 303, and defendant filed a reply, see Def.’s Reply to Pls.’ Resp. to 

Mot. for Protective Order, ECF No. 308. Plaintiffs’ deposition notice seeks the designation and 

production of Rule 30(b)(6) witnesses for 49 different topics, and the government objects that the 

topics are overly broad, unduly burdensome, not relevant, and not proportional to determination 

of just compensation. The government also contends that the notice requires it to provide legal 

analysis and conclusions and to speculate as to future decision-making by numerous federal 

agencies, noting that plaintiffs’ request relates to the work of at least 20 different federal 

agencies. See Def.’s Mot. for Protective Order. at 1-2. This motion is GRANTED IN PART and 

DENIED IN PART.

Plaintiffs’ request is, among other things, overly broad and seeks minimally relevant 

information. Their request seeks information about essentially every flowage easement owned 

by defendant and apparently relates to 977 federal flood control projects. Def.’s Mot. for 

Protective Order at 6. This information would be a disproportionally large production burden to 

place on defendant compared to the limited utility it would have on the issues at hand. Plaintiffs 

have provided no adequate reason why they need information about other easements and other

flood control projects to determine their potential rights for this flood control project. Therefore, 

their request should be limited to information pertaining directly to the easement at issue here.

Plaintiffs also seek a witness to provide testimony about defendant’s use of “offsets,” 

things like federal grants and other financial benefits plaintiffs may have received, to offset an 

award of just compensation. See Def.’s Mot. for Protective Order at 8. This appears, as 

defendant argues, to require defendant to disclose their legal theories for just compensation, see 

id., and is not an appropriate contention request at this stage of discovery. This information is 

more properly exchanged during expert discovery. Additionally, to the extent that plaintiffs

request information on federal programs not applicable to the six bellwether properties, the 

request is irrelevant. Any such request should be limited to the six properties at issue here in the 

just compensation phase of the case.

The remainder of defendant’s objections relate mainly to the suggestion that some of the 

topics are repetitive of previous discovery efforts by plaintiffs in the phase of the case that 

concerned liability. See, e.g., Def.’s Mot. for Protective Order at 14. Although duplicative 

efforts are not needed, plaintiffs’ request for defendant to provide updated information is 

appropriate. Defendant may have information that, for example, presents updated and completed 

hydrology reviews or revisions to the Upper Buffalo Bayou Watershed flood control plan. Even 

though this information may have been created after the date of taking, it is not irrelevant 

because the easement is permanent and thus the risk faced by future impounded floodwaters 

would likely have a bearing on the frequency of use by defendant of the flowage easement that 

has been taken and therefore property value. Information relating to the Buffalo Bayou flood 

control project generally that would affect the Addicks and Barker Dams and Reservoirs, or
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information directly relating to the Addicks and Barker Dams and Reservoirs, or the effects from 

Hurricane Harvey on these areas, regardless of date of creation, is relevant.

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The second pending motion is defendant’s motion to compel the production of disasterrelated casualty loss documents. See Def.’s Mot. to Compel, ECF No. 292. Plaintiffs filed a 

response in opposition (“Pls.’ Resp. to Mot. to Compel”), see ECF No. 302, and defendant 

replied, see Def.’s Reply to Pls.’ Resp. to Mot. to Compel, ECF No. 305. Defendant is seeking 

to compel the production of documents from plaintiffs that relate to any disaster-related casualty 

loss claimed by plaintiffs from Hurricane Harvey, including all federal income tax returns and 

the associated worksheets, schedules, and supporting documents. Def.’s Mot. to Compel at 1-2. 

Plaintiffs represent that they have provided all requested documents to defendant except their 

federal income tax returns and related attachments. Pls.’ Resp. to Mot. to Compel at 1.

As plaintiffs correctly contend, their tax returns enjoy a form of qualified privilege, see 

Pls.’ Resp. to Mot. to Compel at 8-9 (citing Premium Serv. Corp. v. Sperry & Hutchinson Co., 

511 F.2d 225, 229 (9th Cir. 1975), and Gattegno v. Pricewaterhousecoopers, LLP, 205 F.R.D. 

70, 72-73 (D. Conn. 2001), among other precedents), and defendant has failed to present a 

compelling reason as to it is they are entitled to overcome the privilege and gain access to the 

documents. Defendant asserts that the tax documents are relevant to the determination of just 

compensation, in that the amount of compensation should be offset by any tax benefit plaintiffs 

may have received in claiming a casualty loss deduction. See Def.’s Mot. to Compel at 4-5. The

court is skeptical that such a collateral benefit would be considered as a relevant consideration in 

the calculation of just compensation, see, e.g., Phillips v. Western Co. of N. America, 953 F.2d 

923, 929 (5th Cir. 1992) (noting there is no “reduction in [] liability by any amounts the plaintiff 

receives from a source collateral to, or independent of, the tortfeasor”), but further, this tax

information can be sought by defendant through other, less intrusive, means. 

Contrastingly, direct payments from federal programs may be relevant to the calculation 

of just compensation, and plaintiffs should provide defendant with requested documents

pertinent to direct payments to the extent they have not yet done so. Consequently, defendant’s 

motion to compel is GRANTED IN PART and DENIED IN PART, in that plaintiffs are 

compelled to provide only documents they have not yet provided that pertain to any direct 

federal program payments they may have received, but they do not need to provide the requested 

tax documents.

The third pending motion before the court is plaintiffs’ motion to compel the production 

of documents. See Pls.’ Mot. to Compel Documents, ECF No. 298. Defendant opposes this 

motion. See Def.’s Resp. to Mot. to Compel Documents, ECF No. 307. Plaintiffs seek to 

compel the production of documents related to six different topic areas: (1) updated appraisals 

and flood damage estimates of the upstream area; (2) the government’s claimed offsets; (3) 

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To the extent that defendant seeks to assert the deliberative process privilege for some of 

this information, it has not done so properly. If defendant believes information is protected by 

the deliberative process privilege, it can make a proper assertion of the privilege when the time 

arises. See, e.g., Marriot Int’l Resorts, L.P. v. United States, 437 F.3d 1302 (Fed. Cir. 2006); 

Chao v. Westside Drywall, Inc., 254 F.R.D. 651, 657 (D. Or. 2009).
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documents relating to the application of the Uniform Relocation Act; (4) updated project analysis 

and data relating to the risk of flooding; (5) updated upstream inundation maps and datasets; and 

(6) real property records relating to a number of the government’s flowage easements. Pls.’ Mot. 

to Compel Documents at 1-2. The arguments presented by the parties with regard to these 

categories of documents echo those presented by defendant’s motions, and thus the reasoning set 

out supra, also applies. As to categories 1, 4 and 5, just as with the first motion, regardless of 

date of creation, defendant shall provide documents it has if they contain information that relates 

to the amount of risk of future flooding at the time of taking.2

 Similarly for category 6, just as 

with the first motion, plaintiffs’ requests should be limited to only those documents that relate to 

the easement at issue in this case; defendant is not required to provide information about other 

easements or flood control projects. For category 2, defendant represents that is has already 

produced all documentation it has regarding benefits plaintiffs received that might serve as 

offsets, and thus, there are no further documents to produce. Def.’s Resp. to Mot. to Compel

Documents at 10. Lastly, defendant correctly asserts that there are no relevant documents to 

produce regarding category 3, because the Uniform Relocation Act is inapplicable to the means 

of actually determining just compensation. See id. at 10-11. Thus, this motion is GRANTED IN

PART and DENIED IN PART, in line with the limitations set forth above.

The last pending motion before the court is plaintiffs’ motion to compel answers to four 

of its interrogatories. See Pls.’ Mot. to Compel Interrogatories, ECF No. 299. Plaintiffs seek to 

compel the government to answer various interrogatories related to what it contends should be 

the amount of just compensation. Defendant objects to this motion, see Def.’s Resp. to Mot. to 

Compel Interrogatories, ECF No. 306, arguing that these interrogatories call for the disclosure of 

purely legal theories, id. at 1. Defendant’s objections have merit. While there is no question of 

relevance here, plaintiffs appear to be seeking information that either concerns pure questions of 

law or is premature. The information plaintiffs seek necessarily will be disclosed during expert 

discovery. Therefore, this motion is DENIED. Plaintiffs are permitted, however, to put forth 

appropriate contention interrogatories that are limited to questions of mixed fact and law. For 

example, plaintiffs can ask about the subjects and factual predicates related to relevant federal 

program offsets. But it is premature and inappropriate to ask essentially for the instructions that 

defendant will give to its expert.

For the reasons stated, defendant’s motion for a protective order is GRANTED IN PART 

and DENIED IN PART, and defendant’s motion to compel the production of disaster-related 

casualty loss documents is GRANTED IN PART and DENIED IN PART. Plaintiffs’ motion to 

compel the production of documents is GRANTED IN PART and DENIED IN PART and 

plaintiffs’ motion to compel the government to answer interrogatories is DENIED.

 It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge

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See supra at 3 n.1, regarding any claim of the deliberative process privilege.