FED DEFS’ STATUS REPORT 1

JEFFREY H. WOOD

Acting Assistant Attorney General

SEAN C. DUFFY (NY Bar. No. 4103131)

U.S. Department of Justice

Environment & Natural Resources Division

Natural Resources Section

601 D Street NW

Washington, DC 20004

Telephone: (202) 305-0445

Facsimile: (202) 305-0506

sean.c.duffy@usdoj.gov

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Federal Defendants.

Case No. 6:15-cv-01517-TC

FEDERAL DEFENDANTS’ 

STATUS REPORT

Federal Defendants provide this Status Report to describe their efforts to confer with 

Plaintiffs’ counsel and place reasonable and practical limits on the potential scope of discovery 

in this matter. Plaintiffs represented to the United States that they would review Federal 

Defendants’ Answer and tailor their discovery requests after determining whether the Answer 

resolved any previously disputed areas of material fact. See Exhibit 2. Despite receiving that 

Answer on January 13, however, Plaintiffs have yet to provide any indication of how they intend 
FED DEFS’ STATUS REPORT 2

to tailor the scope of discovery. Plaintiffs instead have propounded improper discovery requests 

and a document hold request on Federal Defendants that is sweeping in its breadth. At the same 

time, Plaintiffs suggest that discovery targeting documents created over seven decades by twelve 

federal agencies and executive offices can occur in the span of a few months. Plaintiffs’ 

proposal is unreasonable on its face. As discussed below, Federal Defendants propose that the 

Court take an active role in case management to facilitate discovery of relevant evidence that is 

proportional to the needs of the case and to avoid discovery requests that are overly broad, 

unduly burdensome, or seek materials that are duplicative or otherwise already publicly 

available. 

I. Since November 21, 2016, Plaintiffs have been Aware of the Need to Narrow the 

Scope of Discovery.

On November 21, 2016, the parties conducted a pre-trial teleconference call. Among the 

topics discussed during the call was the status of discovery and potential discovery-related 

conflicts. During the call, Plaintiffs indicated that they intend to seek interrogatories and 

extensive document production concerning the positions that Federal Defendants have taken on 

climate change, going back as far as 1950. Plaintiffs also indicated that they intend to offer 

between 15 and 20 expert witnesses. Federal Defendants stated that responding to discovery as 

broad in scope as that proposed by Plaintiffs would involve a massive undertaking and would 

take years to complete. Federal Defendants suggested possible reasonable limitations to 

discovery, such as identifying agency reports and eliminating email searches. Federal 

Defendants also suggested that its Answer, which contained numerous substantive responses, 

could narrow the number of issues in dispute and provide a basis for more streamlined discovery. 

On November 28, 2016, the Court held a hearing, during which Federal Defendants 

reiterated that the Answer could narrow the number of issues in dispute and provide a basis for 
FED DEFS’ STATUS REPORT 3

more streamlined discovery. ECF No. 100 at 5. At that hearing, Plaintiffs acknowledged that 

they would need to review the Answer “before we can really set a firm date for the close of 

discovery.” Id. at 10.

Plaintiffs then claimed that “defendants have indicated to us that they believe that we 

can’t get to trial for approximately five years.” Id. Plaintiffs also stated that “there are 

indications that the defendants are going to attempt to delay our getting to trial in this case.” Id.

at 10-11. The first statement is misleading and the second statement is false. In fact, during the 

November 21 call, Federal Defendants explained to Plaintiffs that the scope of discovery 

Plaintiffs envisioned was so broad that unless they significantly narrowed it, responding to the 

discovery requests would take several years. This statement is consistent with the experience of 

Department of Justice attorneys who have participated in complex litigation involving similarly 

extensive discovery obligations spanning multiple agencies. 

Federal Defendants then described the requests that Plaintiffs made during the November 

21, 2016 call and explained that the parties need to discuss the scope of discovery that Plaintiffs 

are seeking before committing to a trial date. Id. at 12-14. Federal Defendants suggested that 

the parties confer and the Court agreed. Id. at 14. 

II. Plaintiffs Did Not Follow Through with Conferral. 

On November 30, 2016, in an effort to work with Plaintiffs to craft document requests 

targeted to yield relevant documents within a reasonable timeframe, Federal Defendants 

contacted Plaintiffs to clarify whether Plaintiffs were primarily interested in the documents they 

reference in the Complaint. Plaintiffs responded on January 6, 2017, indicating that they 

believed the best way to proceed is to first review Federal Defendants’ Answer. Exhibit 2. In 

the interim, Plaintiffs noticed a deposition of Rex Tillerson. But they did not respond to the 
FED DEFS’ STATUS REPORT 4

November 30 email or engage in an effort to reinitiate the conferral process or otherwise narrow 

the scope of discovery. 

Intervenor-Defendants and Federal Defendants filed answers on December 15, 2016 and 

January 13, 2017 respectively. ECF Nos. 93, 98. On January 20, before a case management or 

discovery order had been entered the by the Court—something the Court had made clear it 

would do—Plaintiffs sent requests for admission to the Executive Office of the President and the 

EPA. Exhibit 3. And on January 24, 2017, Plaintiffs sent a “Notice of Litigation Hold and 

Request for Preservation” to Federal Defendants. Exhibit 4. The January 24 letter identifies an 

enormously broad scope of documents as records “of particular importance to the instant 

litigation.” These include, inter alia, “[a]ll Documents related to climate change since the 

Federal Defendants . . . became aware of the possible existence of climate change” and “[a]ll 

Documents related to federal public lands, navigable waters, territorial waters, navigable air 

space or atmosphere, or other public trust resources.” Id. at 5-6. 

The scope of the documents that Plaintiffs identified as records that are “of particular 

importance” to the case on January 24, 2017 is no narrower than the scope of documents 

Plaintiffs indicated they will be seeking on November 21, 2017. To respond to document 

production requests as broad as those described in the January 24 letter would be a multi-year 

endeavor, requiring the review of electronic and physical documents produced, archived, or 

otherwise under the control of any of the defendant agencies or their countless sub-agencies, 

regional offices, and field offices throughout the United States. 

Also on January 24, Plaintiffs circulated a proposed case management schedule by email. 

Exhibit 5. The proposed schedule indicates that non-expert discovery would be completed by 

May 19, 2017 and expert discovery would be completed by June 23, 2017. Plaintiffs made no 
FED DEFS’ STATUS REPORT 5

efforts to confer as to the scope of discovery prior to sending the January 24 letter or prior to 

proposing a schedule. Instead, Plaintiffs proposed that the parties confer just one day before the 

January 31 deadline for filing a Court-ordered status reports with a proposed pretrial schedule. 

III. The Dates that Plaintiffs Propose are Unrealistic.

The dates that Plaintiffs proposed in their schedule are entirely unrealistic given the 

nature of this case and Plaintiffs apparent unwillingness to narrow the scope and breadth of what 

they seek. The Court has noted that this is a complex case. ECF No. 100 at 12. Federal 

Defendants aver that discovery in this case will be enormously time consuming and largely 

unmanageable if Plaintiffs insist on pursuing discovery of “all Documents related to climate 

change since the Federal Defendants . . . became aware of the possible existence of climate 

change” and “[a]ll Documents related to federal public lands, navigable waters, territorial waters, 

navigable air space or atmosphere, or other public trust resources.” Even putting aside Plaintiffs’ 

intended document discovery, if Federal Defendants’ only discovery obligations were to depose 

the twenty-two named Plaintiffs to determine the facts concerning the harms they allege and their 

standing to bring these claims, it would still be challenging to complete those depositions by 

May 19, 2017. But the allegations in this case involve highly complex scientific issues. 

Accordingly, highly complex expert reports will be filed, will need to be reviewed, and the 

experts will need to be deposed. 

In response, Federal Defendants proposed conferring well in advance of the January 31 

deadline for filing a status report. Federal Defendants pointed out that Plaintiffs’ respective 

positions on the scope of the discovery and proposed dates for conducting discovery are 

completely incompatible. Exhibit 5. In response, Plaintiffs indicated that, because one of the 

three counsel working on this case was out of cell phone and internet range, Plaintiffs could 
FED DEFS’ STATUS REPORT 6

confer no earlier than January 30. Id. Notwithstanding Plaintiffs’ previous acknowledgement 

that they intended to review the Answer and confer with Federal Defendants on the scope of 

discovery, and notwithstanding Federal Defendants’ repeated efforts to confer on this issue, 

Plaintiffs continue to maintain an untenable position on the scope of discovery while proposing a 

schedule that in not commensurate with their demands. 

On January 30, 2016, the parties participated in a case management conference. During 

that call, Plaintiffs represented that they were in the process of reviewing Federal Defendants’ 

Answer and what impact it might have on the discovery sought. Federal Defendants responded 

that they could not meaningfully discuss a discovery schedule until Plaintiffs provided them with

a description of the universe of documents they intend on seeking through document production 

requests. Although Plaintiffs promised to cooperate, Federal Defendants remain concerned 

because Plaintiffs have previously made similar representations but there has been no apparent 

progress to tailor discovery.

IV. Case Management Going Forward.

Federal Defendants await Plaintiffs’ full engagement in the case management process for 

this case. Because Plaintiffs have failed to meaningfully confer as to the scope of the discovery 

they will be seeking, or the number of expert reports they will be submitting, it is impossible for 

Federal Defendants to propose dates by which it could satisfy its as-yet unknown discovery 

obligations. Nonetheless, Federal Defends submit the attached proposed schedule, as it provides 

a more detailed framework – including limitations on the amount of discovery – for proceeding 

with the case. 

Federal Defendants have begun the process of conferring individually with custodians at 

each of the twelve Federal Defendant entities to determine, at minimum, which kind of electronic 
FED DEFS’ STATUS REPORT 7

paper document retention system they have for the collection of documents; how far back each 

system goes; when electronic records first began to be recorded; what document retention 

policies are in place; and when and under what conditions documents are transferred to the 

National Archives. Only then will the parties be capable of providing a realistic estimate of the 

scope of the endeavour of responding to Plaintiffs’ document requests. This would be the 

beginning of what appears to be a mammoth discovery undertaking. 

As noted above, Plaintiffs have initiated the discovery process in a piece-meal fashion 

without first reviewing the Federal Defendants’ Answer or conferring with Federal Defendants 

as to the scope of discovery. As a consequence, neither Federal Defendants nor the Court has a 

clear sense of where this litigation will lead. More than two months have passed since the 

November 28 hearing, and the parties are in no better a position to provide the Court with some 

idea as to how the discovery portion of this case will proceed. Instead, the only actions that 

Plaintiffs have taken are to issue – without conferring with either party – a deposition notice on a 

person not presently affiliated with any defendant and requests for admission. 

Federal Defendants believe that this case could benefit from direct judicial involvement 

in case management to ensure that the parties are proceeding in an orderly way toward obtaining 

relevant evidence that is proportional to the needs of the case and to avoid discovery requests 

that are overly broad, unduly burdensome, or seek materials that are duplicative or otherwise 

already publicly available. To that end, Federal Defendants propose that the Court order the 

parties to partake in periodic status conferences to keep the Court apprised of any developments 

that merit its attention.
FED DEFS’ STATUS REPORT 8

Dated: January 31, 2017 Respectfully submitted,

JEFFREY H. WOOD

Acting Assistant Attorney General

Environment & Natural Resources Division

/s/ Sean C. Duffy 

SEAN C. DUFFY (NY Bar. No. 4103131)

U.S. Department of Justice

Environment & Natural Resources Division

Natural Resources Section

601 D Street NW

Washington, DC 20004

Telephone: (202) 305-0445

Facsimile: (202) 305-0506

sean.c.duffy@usdoj.gov

Attorneys for Federal Defendants

Certificate of Service

I hereby certify that on January 31, 2017, I filed the foregoing with the Clerk of Court via 

the CM/ECF system, which will provide service to all attorneys of record.

/s/ Sean C. Duffy

Sean C. Duffy

Attorney for Federal Defendants