ASCOM HASLER MAILING

SYST EMS, INC., P laintif f,

v. UNITED STAT ES POSTAL S ERVICE,

Defendan t. NEOPOST, INC., P laintif f,

v. UNITED STAT ES POSTAL S ERVICE,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 00-1401 (P LF/JM F )

Civil Ac tion N o. 00-2089 (P LF/JM F )

MEMORAN DUM OP INION These c ases ha

ve bee n ref

err ed to me by

J udg e F riedman f

or full ca se mana g ement. Pending be fore me now ar e seve ral motions, including ( 1) Plaintiffs’ Motion to Com pel Def endant to Produce Information It Has Withheld P ursuant to the De liberative Proc ess Privileg e [#105] (“Pls. Mot. to Compel”) ; (2) De fenda nt’s Motion to S trike Plaintiffs’ Expert Desig nation 1 [#106] (“D ef. Mot. to Strike #1”); De fenda nt’s Motion to Enlarg e Time for Def endant to I dentify I ts Ex perts [#106] (“D ef. Mot. for Ex t. #1”); (4) Def

endant’ s Motion for an Or der Extending the

Iwill refe r only

to the docket e ntry

numbers for

the lead c ase in this consolidated a ction, 1 Neopost, Inc., v. U.S. Postal Serv., No. 00-CV-2089, a s the docke t entry of Oc tober 4, 2006 indicates that a ll filings should be made under the lead c ase.Time For

Def endant to Respond to Plaintiffs’ Requests for Admissions [ #107]; (5) De fenda nt’s Motion to S trike Plaintiffs’ Requests for Admission [ #114] (“Def . Mot. to S trike #2”) ; (6) Def endant’ s Motion to C ompel and for Attorney ’s Fe es [#108] (“D ef. Mot. to Compel”); (7) Def endant’ s Motion for an Or der Extending the Time for D efe ndant to Complete Discover y [#108] ; and (8) D efe ndant’s Motion for L eave to File a Sur- reply [#123] . I will address the motions i n turn. I. P laintif fs’ Motion to Com pel Def endant ha s ref

used to produce cer

tain rele vant documents, c laiming that they are protec ted by

the deliber ative proc ess privileg e. See Pls. Mot. to Com pel at 1. Plaintiffs filed this motion to compel, arguing tha t the deliberative proce ss privileg e does not a pply beca use (1) the United States Postal Service (“ USPS ”) did not comply with the proce dure r equire d to claim the privileg e, (2) the g overnme nt ag ency ’s ac tions were c ommercia l, not regulatory , (3) the c laims at issue involve the intent of a g overnme nt ag ency , (4) the g overnme nt ag ency passed its regulations in bad faith, and ( 5) the ba lance of intere sts tips in favor of plaintiffs’ nee d for the information. Memora

ndum in Support of Pl aintiffs’ Motion to Compel Defe ndant to Produce Information It has Wit hheld Pursuant to the Deliber ative Proce ss Privil eg e [#105] (“Pls. Memo. to Compel”) at 1. De fenda nt argues that the motion should be denied be cause (1) plaintiffs did not comply

with L ocal Rule 30.4, (2) the deliber ative proc ess privileg e wa s proper ly asser ted, (3) plaintiffs are not entitled to disclosure of privileg ed communications, and (4) indepe ndent g rounds exist for pr otectingfrom produc tion the remainingdocuments soug ht by plaintiffs. Opposition to P laintiffs’ Motion to Compel [ #113] (“Def . Opp. Mot. to Compel”) at 1.Local Rule 30.4

L ocal Rule 30.4, re fer

ringto the form of r esponses to interr og atories a nd reque sts for admission or production of doc uments, require s motions t o compel answ ers or response s to identify and quote e ach inter

rog atory or re quest in full immediately prec edingthe answe r, response or objec tion thereto. See L CvR 30.4. As defenda nt asserts, plaintiffs did not quote

eac h interrog atory

or re quest in full in their motion t o compel; howeve r, they did identify

the interrog atory

or re quests in question and provided the f ull tex t as an attachment. As ther e ar e seven inter

rog atories a

nd 25 document re quests at issue, plaintiffs’ inclusion of the interrog atories a

nd reque sts as attachme nts, rather than as pa

rt of the text of the motion,

rea sonably

complies with the spirit of L ocal Rule 30.4. De spite defe ndant’s objec tions, Iwill not deny plaintiffs’ motion on this basis; there fore , Iwill continue with an ana ly sis of the deliberative proce ss privileg e. Deliberativeprocess privilege The de liberative pr ocess pr ivilege provides prote ction for those doc uments which re flec t “advisory opinions, recommendations, and deliberations that are pa rt of a pr ocess by

which Gover nment decisions and policies a re f ormulated.” Dep’ t of the I nterior v. Klamath Water User s Protective Assoc ., 532 U.S. 1, 8-9 (2001) ( citing N .L .R.B. v. Sear s, Roebuck & Co., 421 U.S. 132, 150 (1975)) . The purpose of the privileg e is three -fold: first, it “protec ts candid discussions within an ag ency”; sec ond, “it preve nts public confusion from pre mature disclosure of ag ency opinions before the ag ency established its final policy ;” and, third, “ it protects the integ rity of an ag ency ’s dec ision,” preve nting the public f rom judg ing of

ficials base d on information they may have c onsidered pr ior to issuing their f inal decision. Alexander v. F .B.I ., 192 F.R.D. 50, 55

3(D.D.C. 2000) ( citing Judicial Watch v. Clint on, 880 F.Supp. 1, 12 (D.D .C. 1995), aff ’d, 76 F .3d 1232 (D.C. Cir. 1996)). The privileg e promotes the qua lity of ag ency

decision-making

by protec ting de cision-maker s’ ability to communicate f

ree ly and privately

without concer

n that deliberations will become the subject of disc overy . Klamath Water U sers Protec tive Assoc., 532 U.S. at 8-9. For the privileg e to apply , communications must be pre- decisional. N.L .R.B. v. Sear s, Roebuck & Co., 421 U.S. at 151. Not every document re lated to a g iven dec ision will be protec ted by

the privileg e simply

beca use it is pre-de cisional. N.L .R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 308 (D .D.C. 2009). Pre-de cisional documents must also be deliber ative to qualify for the pr ivilege . I d. “A doc ument is ‘prede cisional’ if it play s a role in the a g ency ’s decision-makingproce ss, and information within that document is delibera tive if it involves the weig hing of

arguments for a

nd ag ainst various outcomes.” Wil son v. Dep’t of J ustice, 87-CV2415, 1991 WL 111457, at *4 (D.D .C. J une 13, 1991) ( citing A cce ss Reports v. Dep’t of J ustice, 926 F.2d 1192 ( D.C. Cir. 1991). A document is deliber ative if it ref lects the g ive-a

nd-take of the consultative proc ess. Coastal States Gas Corp. v. De p’t of Ene rgy , 617 F.2d 854, 866 ( D.C. Cir. 1980). In other wor ds, “the doc ument must be a direc t part of the de liberative pr ocess in that it makes re commendations or e x presse s opinions on lega l or policy matters.” V aug hn v. Rosen, 523 F.2d 1136, 1144 ( D.C. Cir. 1975). Thus, purely fac tual materia l is not protected, “‘ unless the mater ial is so inex tricably intertwined with the de liberative se ctions of documents that its disclosure would inevitably reve al the g overnme nt’s deliberations.’” N.L .R.B. v. Jackson Hosp.

4Corp., 257 F.R.D. at 308 (quoting In re Sea led Case, 121 F .3d 729, 737 (D.C. Cir.1997)). 2

There fore , documents will not be protec ted in their entire ty , unless reda cting the portions of the documents that re veal de liberations is impossi ble. I d. at 309. Docume nts that “‘memoria liz e or evidenc e the policy

an ag ency

ultimately

adopts on an issue’” or “doc uments that the ag ency used in dealingwith the public” ar e not privileg ed. I d. To proper ly

withhold a document on the g rounds that it is privilege d, the par ty seeking privileg e must “desc ribe the nature of the documents, communications, or tang ible things not produce d or disclosed a

nd do so in a manner

that, without revea ling infor mation itself privileg ed or protec ted, will enable othe r par ties to assess the cla im.” Fe d. R. Civ. P . 26(b)( 5)(A) (ii). Thus, for the U SPS ’s desc ription to be adequa te, “the Court a

nd [pl aintiffs] must be able to determine, from the pr ivilege log, that the documents withheld ar e (1) pre- decisional; (2) deliberative; (3) do not ‘memorialize or evide nce’ the ag ency ’s final policy ; (4) we re not shar ed with the public; and (5) c annot be pr oduced in a reda cted f

orm.” N.L .R.B. v. Jackson Hosp. Corp., 257 F.R.D. at 309. Fur ther, a n asser tion of privileg e re quires: “( 1) a f ormal cla im of privileg e by the ‘he ad of the depar tment’ havingcontrol over the re quested infor

mation; (2) asser

tion of the privileg e base d on actua l personal c onsideration by that officia l; and (3) a

detailed spe cification of the information for whic h the privileg e is claimed, w ith an explanation why it properly

falls within the scope of the privileg e.” L andry

v. F.D.I .C., 204 F.3d 1125, 1135 (D.C. Cir. 2000) ( citations omitt ed).

Def endant incor

rec tly argues that once a par

ty claims the deliber ative proc ess privileg e, 2 it is t he re sponsibili ty

of the opposingparty

to propound supplemental discove ry reque sts for the underlying f

actua l information contained w ithin the privilege d materia l. Def. O pp. Mot. to Compel at 2-3, 7-11. It is the responsibility of the pa rty asser ting the pr ivilege to narrow ly construe suc h a privileg e and pr ovide the re questingparty with unprivileg ed fa ctual mater ial. See, e.g ., N.L .R.B. v. Jackson Hosp. Corp., 257 F.R.D. at 308 (citations omitted). 5Thus, “to prope rly asser t the privileg e, def

endant must ‘esta

blish a formal, c onsidered, detailed c laim of privileg e.’” Doe v. Dist. of Columbia, 230 F.R.D. 47, 51( D.D.C. 2005) (quoting Tri-State Hosp. Supply

Corp. v. U.S., 226 F.R.D. 118, 134 (D.D .C. 2005) (citations omitted)). A common prac tice of a g encie s seeking to invoke the deliber ative proc ess privileg e is to establish the privileg e throug h a combination of pr ivilege logs, which identify specific documents, and decla rations from a g ency

officia ls ex plaining “ what the doc uments are and how they rela te to the [age ncy ] decision.” N.L .R.B. v. Jackson Hosp. Corp., 257 F.R.D. at 308 (citingL andry , 204 F.3d at 1134; Colo. W ild Horse and B urro Coal., Inc. v. Ke mpthorne,, 571 F . Supp. 2d 71, 73 n. 2). To avoid wa iving pr ivilege , the def endant a g ency

must “make a

detailed a

rgument, including aff idavits from the prope r g overnme ntal authorities, in support of the privileg e” be cause , “without a spec ific ar

ticulation of the rationale supporting the privileg e,” a court c annot rule on whether the privileg e applies. D oe, 230 F .R.D. at 51-52. 3 Analysis The de fenda

nt has provided a

privileg e logfor the doc uments it withheld that is m ore or less useless. F rom the privileg e log , it appear s that the documents in question fall into three cate g ories, 1) doc uments that are also protec ted by either attorney -work pr oduct or attorney -client privileg es, 2) doc uments that are internal, pre -dec isional documents, and 3) doc uments that are

Def endant incor

rec tly interpre ts my

opinion in Doe. Ido not “explain” in Doe that 3 “once challeng ed, a g overnme nt ag ency need only

produce an af

fidavit establishingthe communications in question are prede cisional ‘policy deliberations, lega l analy sis or conclusions’ for

the deliber ative proc ess privileg e to stand.’” Def . Opp. Mot. to Compel at 6 (citingDoe, 230 F .R.D. at 51). Instead, I make c lear

that the ag ency

must “make a

detailed argument, including a ffidavits fr om the proper g overnme ntal authorities, in support of the privileg e.” D oe, 230 F .R.D. at 51-52. Thus, af fidavits are nece ssary

to support an ag ency ’s detailed a rgument for the c laim of privileg e, but ar e in no way sufficie nt in themselves to establish that privileg e. 6communications with or from a third party , Pitney

Bow es. Plaintiffs do not challeng e the a ssertion of attorne y -client or attorney -work pr oduct privileg es; there fore , while the docume nts are subje ct to plaintiffs’ motion, it would be of littl e use to deter

mine whether

the deliber ative proc ess privileg e applies to doc uments for whic h defe ndant claims an a dditional privilege , as they would be withheld any

way . Thus, as a preliminary

matter, I will not consider the docume nts for which de fenda nts assert a pr ivilege in addition to the deliberative proce ss privileg e (se e table be low). Be g inning Doc Bates # End Doc B ates # Document Ty pe Nature of Privileg e ASC 000445 ASC 000447 Memorandum Attorney Client Communi cation & Pre-de cisional ASC 000609 ASC 000614 Memorandum Attorney Work Product, Attorney Client Communi cation & Pre-de cisional ASC 000642 ASC 000646 Memorandum Attorney Work Product, Attorney Client Communi cation & Pre-de cisional ASC 001163 ASC 001165 Memorandum Attorney Work Product & Predecisional ASC 001175 ASC 001177 Memorandum Attorney Work Product & Predecisional ASC 001200 ASC 001201 Memorandum Attorney Work Product & Predecisional ASC 002656 ASC 002690 Memorandum Attorney Work

7Product, Attorney Client Communi cation & Pre-de cisional ASC 002719 ASC 002745 Memorandum Attorney Work Product, Attorney Client Communi cation & Pre-de cisional ASC 002764 ASC 002765 Memorandum Attorney Work Product & Predecisional ASC 002820 ASC 002824 Memorandum Attorney Work Product, Attorney Client Communi cation & Pre-de cisional ASC 002825 ASC 002826 Memorandum Attorney Client Communi cation & Pre-de cisional This leaves only

internal, pre -dec isional documents and external, pre -dec isional communications with Pit ney Bow es. USPS’s privilege log doe s not provide any information

conce rningthe documents withheld on the ba sis of deliberative proce ss privileg e, save the ty pe of docume nt, the author a nd addre ssees, a

nd that these doc uments are pre- decisional. See Def

. Opp. Mot. to Compel at Ex . B. In its S upplemental Privileg e L og in Response to Plainti ffs’ Discover y Requests, defe ndant also fa iled to include any decla rations supporting the claims of privileg e. De fenda

nt does provide a

n aff idavit from the re levant “he ad of the depar tment,” Manag ing Counsel f

or the Corpora

te L aw Sec tion, in support of its oppos ition to t his moti on to compel. See D ef. O pp. Mot. to Compel at Ex. A. But, the privileg e logand dec laration alone ar e

8not sufficient for me to make a

deter mination as to the privileg e cla im because the asser tions in the dec laration are c onclusory . Whil e I might be te mpted to deny the claim of pr ivilege on that g round, I also preside d over the settlement discussions betwee n the United States and Pitney Bow es, and I

am deter mined to protect the c onfidentiality of those discussions at all costs. Despite the de ficienc y

in the privileg e log , Iwill neverthe less order defe ndant to submit t he

rema ining doc uments it has withheld, pursuant to the deliber ative proc ess privileg e, to me within ten day s of this order f

or in camera revie w of the doc uments. 4 II. Defendan t’s M otion to Strike P laintif f’s Exp ert

Designation Def endant ha s filed this moti on claiming that plaintiffs’ expert, Dr. B ruce D. Abra mson, should be disqualified “be cause of [a] conflict of interest c reated by his prior work on litiga

tion that is significa

ntly related to the pre sent matter a nd for whic h there is a confide ntiality order limit ing the disclosure of inf ormation within his possession and releva nt to his t estimony .” De f. Mot. to S trike #1 at 1. Dr . Abramson disclosed during his deposition that he had worke d for Pitney Bow es in its lit igation ag ainst the defe ndant. I d. at 4. Dr. Abramson had w orked on the consultant team that produc ed the e x pert re port for Pitney Bow es that wa s used in the litigation and conf idential mediation. I d. Dr. Abr amson was not Pitney Bow es’s princ ipal expert, but he did coordinate the ec onomic analy sis of the expert repor t. I d. Fur ther, de fenda

nt claims that Dr. Abramson has seen the confide ntial report a nd information that Pitney Bow es submitted during mediation. I d. The re port submitted by Pitney Bow es’s e x pert, Dr . Over street, involved the revie w of c onfidential information submi tted by the def endant. I d. at 8.

Def endant ha s filed a Motion for L eave to File a Sur- reply to Plainti ff’ s Motion to 4 Compel [ #123]. I have r eviewe d the proposed sur -re ply , and I can a ssure the pa

rties that I

do not intend to rely

on any of the a rguments in it. The motion i s theref ore de nied as moot. 9There are g enuine issues of material fa ct that must be resolve d befor e I can de cide this motion. Iwill therefor e orde r the pa rties to meet and c onfer

to find a day

amena ble to both sides to hold an evidentiar

y hear ing on the motion. The evidentiary hear ing w ill be set to determine what conf idential information re lated to the Pitney Bow es mediation, if any , was made available to Dr. Abra

mson by defe ndant bec ause of

his participation in the pre paration of the Pitney Bow es expert repor

t. Ag ain, I

express my

conce rn that the settlement discussions re main confide ntial at all costs. Iwill therefor e set a pre- hear ing status confer ence at which c ounsel and I can disc uss how to acc omplish what we must and still protect the conf identiality of the settlement discussions. 5 III. Defendan t’s M otion f or an Order Exte ndi ng the Time F or De fend ant to Respond to P laintif fs’ Requests f

or Adm ission s and

Motion to Strike P laintif fs’ Requests f

or Adm ission Def endant f iled this mot ion for an e x tension of time to respond to plaintiffs’ r equests for admissions, arguing both that the a g ency ’s counse l had a f amily emer g ency

and that plaintiffs had agree d to allow defe ndant an a dditional amount of time to respond, only to revoke their consent. De f. Mot. for Ext. #1 at 2. Pl aintiffs ar gue that the r esponse to their r equests for admissions were ove rdue, e ven bef ore de fenda

nt reque sted additional time, and that they never ag ree d to an extension. P laintiffs’ Opposition to Defe ndant’s Motion for a n Orde r Extending the Time for D efe ndant to Respond to Plainti ffs’ Re quests for Admission [#126] (“Pls. Opp. for E x t. #1”) at 2-3. Fur

ther, plaintiffs a

rgue that def

endant soug ht an excessive amount of a dditional time to respond “to scuttle pre viously set dispositi ve motions deadlines.” I d. at 1.

In addition to the motion t o strike, def endant ha s filed a motion to enlarg e time to 5 identify its ex pert. The motion is denied without pre judice, pendingthe evidentiar y hear ing on the Motion to S trike Plaintiff’s Expert Desig nation. 10Plaintiffs claim that they completed ha

nd delivery

of their r equest for

admissions on J uly 8, 2009. I d. at 2. Plaintiffs provide an e mail confirmation of ha nd delivery

of the doc uments on J uly 8, 2009 to the United States Attorney , 555 Four th Street, NW, Floor 10, Washing ton DC 20001. I d. at Ex. A. I f this were true, de fenda nt’s response s would be due Aug ust 7, 2009, the last day of discover

y . Def endant r esponds to this argument with a Motion to S trike Plaintiffs’ Requests for A dmission. S ee D ef. Mot. to Strike #2 at 1. Ac cordingto defe ndant, plaintiffs did not properly

serve their re quests for a dmissions on defe ndant, nor we re the reque sts tim ely . I d. Def endant c laims that plaintiffs delivere d the re quests for a dmissions to an incorr ect a ddress, i.e., 555 Four th Street, instead of 501 Thir d Street, and that by the time defe ndant’s counse l rec eived the re quests for a dmission, defendant’s r esponse, whic h had to be f iled thirty day s after

rec eipt of the re quests, would have ha d to be filed pa st the discovery deadline. I d. Acc ording to defe ndant, this should relieve it of any obligation to file answer s. To support its claim that the reque sts were improperly serve d, defe ndant provides a letter dated July

25, 2007, addre ssed to the Clerk of the Court, reg arding the servic e of pr ocess on United States Attorney ’s Off ice in Civil Cases. Def. Mot. to Strike #2 at Ex. 4. The letter indicates that it is written pursuant to F eder al Rule of Civil P roce dure 4( i)(1)( A) a nd perta ins to the servic e of summons and c omplaints upon the United States by service upon the United States Attorney . I d. The issue be fore the cour t, however , is not the service of a summons and c omplaint upon the United States, but the timely service of discover

y reque sts after a

n answe r has be en filed and counse l for def

endant ha s entere d her a

ppear ance . As plaintiffs indicate, this issue is g overne d by

Fe dera l Rule of Civil Procedur e 5(b) . That rule r equire s that “if a pa rty is repr esente d by

an attorne y , service under this rule must be made on the attorne y .” Plaintiffs’

11Opposition to Defenda nt’s Motion to S trike Plaintiffs’ Requests for Admissions [ #120] (“Opp. to Mot. to S trike #2”) at 2. Service was made at the addr ess def endant’ s attorney

provides, bene ath his own signature, at the conclusion of c ourt documents submitted in this case. Service was made ther efor e in a timely manner and exactly

as the pe rtinent rule r equire s. I t is unreasona ble for de fenda

nt to ex pect plaintiffs to have ser ved the doc uments to the addre ss provided in a twoy ear -old letter not addr essed to plaintiffs a nd not refe rringto the service of discover y reque sts rathe r than the a ddress that de fenda nt’s counsel include s benea th his signature in ever

y document filed in this case. There is no basis for def endant’ s motion t o strike, and thus, I will deny it. 6 Iam left to dete rmine whe ther, de spite defe ndant’s fa ilure to respond to plaintiffs’ reque st for a dmissions in a timely manner , Ishould gr ant def endant a n extension of tim e to do so. Fe dera l Rule of Civil Procedur e 6(b) g overns the e x tensions of time for va rious filings. See Fe d. R. Civ. P . 6(b); see also Smit h v. District of Columbia, 430 F.3d 450, 456 (D .C. Cir. 2005) (findingthat a post-dea dline extension requires a motion and a finding of excusable ne g lect). Def endant f ailed to re spond to the reque st for admissions in a timely manner and filed the prese nt motion after the time to re spond to the reque st for admissions had expired and the discove ry deadline ha d passed. The court may , for c ause, grant such a n extension, onl y

upon the filing of a motion seeking leave to file the untimely filed docume nt and a showingof excusable ne g lect. See F ed. R. Civ. P. 6(b)(1). Without s uch a motion for le ave to f ile, the cour

t has no power

to g rant the e x tension sought. Smith, 430 F.3d at 456. I must therefor e strike de fenda nt’s motion for a n extension of tim e.

Ican take judicial notice that 501 Third Street is acr oss the street f rom the re ar of

555 6 Four th Street. Why

there was de lay

in the reque sts making their way acr oss 3 Street is not

rd explained. 12IV. Defendant’s Motion to Com pel and for Attor ney’s F ees

The c ourt has alr eady

considere d one motion to compel by the def endant a nd order ed plaintiffs to respond to def endant’ s first discovery

reque sts and to pay

$250 in attorney ’s fe es. See Nove mber 29, 2007 Minute Or der. D efe ndant indicates that plaintiffs have f ailed to make this pay ment. Def

. Mot. to Com pel at 1. Plaintiffs, in their opposition brief, do not deny that they have not c omplied with my order . Iwill order plaintiffs to pa y the $250 within 3 day s of this order . Future failure to comply with the court’s or ders will not be excused. In its second motion to compel, defe ndant see ks documents in ref ere nce to its Supplemental Request for Produc tion of Documents filed on Ma y 12, 2009. I d. at 2. Plaintiffs have pr ovided some docume nts in refe renc e to the re quest, but defe ndant finds the produc tion to be “w oefully

defic ient.” I d. Plaintiffs claim that they have pr oduced a ll responsive docume nts in their possession, custody

and contr ol. Plainti ffs’ O pposition t o Def endant’ s Motion to C ompel and for Attorney ’s Fe es and f

or an O rder

Ex tending the Time for

Def endant to Complete Discover y [#125] (“O pp. to Def. Mot. to Compel”) at Ex . A. As F eder al Rule of Civil P roce dure 34 indicates, a

party may serve on another

party a re quest to produce items in the responding party ’s “possession, custody , or control.” Fe d. R. Civ. P . 34(a) . The rule require s only that parties pr oduce doc uments that “ar e alreadyin exi stence .” Alexander v. F.B .I ., 194 F.R.D. 305, 310 (D.D.C. 2000) ( citing Roc kwell Int’l Corp. v. H. Wolfe Iron and Me tal Co., 576 F. Supp. 511, 512 (W.D. Pa. 1983); 8A Charles A . Wright, Arthur R. Mill er, & Richard L . Marc us, Fe dera l Practice and Proce dure § 2210 ( 2d ed. 1994)) (empha sis added). A ccor dingly , a par ty cannot be require d “to pre pare , or ca use to be pre pare d,” docume nts not already in exi stence solely to satisfy the re quests of an opposingparty . I d. (citing Rockwell, 576 F . Supp. at 511).

13L ack of

evidenc e showingthat a produc ing pa rty is in fact in possession of a doc ument is g rounds to deny

a motion to compel. See id. I t is unclear to me that all of the docume nts that defenda nt seeks have been pr oven to exis t; however , it is clear that ther e we re some doc uments sought by defe ndant which onc e exis ted, but are no longe r in the possession, custody , and contr ol of plaintiffs. While Icannot compel plaintiffs to produc e docume nts that no longe r exist wit hin their possession, custody and control, I cer tainly fea r, and de fenda

nt alludes to, the potential for a spoliation mot ion that may be diffic ult to resolve bec ause of the passag e of time. I

would like to preve nt both the parties’ and judicial re source s from beingspent nee dlessly . Thus, Iam g oing to or der the parties to wor k toge ther to dete rmine: (1) e x actly what docume nts defenda nt stil l seek; (2) whether

these documents, to the best of pla intiffs’ knowledg e, eve r existed; (3) if they did exi st, to the best of plaintiffs’ knowledg e, who wa s last known to have possession, custody or control of

them; (4) whether plaintiffs object to the disclosure of the doc uments, on g rounds other tha n the burde n of the passag e of time a

nd what spec ific support will they offe r for these objec tions; and (5) whe ther there are documents that ar e in the possession, custody and contr ol of plaintiffs that provide the same infor

mation sought by

defe ndant as doc uments once in e x istence but no long er in the possession, custody

and contr ol of plaintiffs. The pa rties ar e orde red to mee t and conf er in a g ood faith ef

fort to provide the court with the most acc urate information possible in a cha rt or an othe rwise c lear

and conc ise format via a joint fili ng , to be filed no late r than 14 da y s from the date of this order . I will deny defe ndant’s motion to compel without prejudice. I will not award attorney s’ fe es to either pa rty . L ikewise, I will also deny

defe ndant’s motion for an or der e x tending the time for de fenda nt to complete

14discovery

without prejudice, pe nding this submission. V. Conclusion For the re asons her ein discussed, the c ourt will gr ant Plaintiffs’ Motion to Com pel Def endant to Produce Information It Has Withheld P ursuant to the De liberative Proc ess Privileg e [#105] ; deny

Def endant’ s Motion for L eave to File a Sur- reply [#123] ; hold an evidentiar y hear ing on D efe ndant’s Motion to St rike Plaintiffs’ Expert Desig nation [#106] ; deny without prejudice Def

endant’ s Motion to Enl arg e Time for Def endant to I dentify

I ts Ex perts [#106] ; strike Def endant’ s Motion for an Or der Extending the Time For Def endant to Respond to Plaintiffs’ Requests for A dmissions [#107] ; deny Def endant’ s Motion to S trike Plaintiffs’ Requests for A dmission [ #114]; and deny without prejudice D efe ndant’s Motion to Compel and for Attorne y ’s Fe es [#108] and De fenda nt’s Motion for an Or der Extending the Time for Def endant to Complete Discove ry [#108]

. An orde r ac companies this memora ndum opinion.

___________________________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

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