UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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:

UNITED STATES OF AMERICA :

ex rel. HARRY BARKO, : CASE NO. 1:05-CV-1276 

:

Plaintiff-Relator, :

:

 v. : OPINION AND ORDER

: [Resolving Doc. 241]

:

HALLIBURTON COMPANY et al., :

:

Defendants. :

:

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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Plaintiff-Relator Barko asks the Court to stay further discovery, to extend scheduling order

deadlines, to enter a protective order, and to grant a renewed motion to compel.1/ KBR opposes.2/ The

parties have filed nearlyfifty pages of briefing and request that the Court rules within the day. KBR’s

mandamus petition is still pending before the Court of Appeals. 

The Court’s earlier scheduling order3/ will be revised, and final dates will be provided once

the Court of Appeals rules on the petition. For now, the discovery deadline is extended from March

30, 2015, to April 30, 2015.

Barko’s most pressing request is for the entry of a protective order prohibiting KBR from

conducting a deposition of Derek Bonenclark, scheduled for March 11, 2015, inSeattle,Washington.

Barko states that lead counsel will be unavailable, that the deposition was not properly noticed, and

1/Doc. 241.

2/Doc. 242.

3/Doc. 206.

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that KBR has not complied with applicable regulations and subpoena requirements pursuant to

United States ex rel. Touhy v. Ragen.

4/

Barko’s best argument is that the DCMA told KBR that KBR could interview Bonenclark

only after giving notice to Barko. It appears that KBR ignored the DCMA and interviewed

Bonenclark without giving Barko such notice. KBR received permission to interview Mr.

Bonenclark on May 5, 2014, which the DCMA “granted on the condition of notice to all parties in

the litigation.”5/ KBR requested and conducted an interview with Mr. Bonenclark pursuant to DOD

Directive 5402.5. Barko argues that KBR’s conduct is improper and that he has been prejudiced as

a result.

KBRarguesthat “theDCMAcounsel’s letter notwithstanding, there is simply no requirement

that notice [of an interview] be provided . . . .”6/ KBR next argues that “the parties for whose benefit

Touhy regulations exist – the Government and Mr. Bonenclark – are aware that KBR did not provide

Barko notice of its Touhy interview, yet still consent to the deposition.”7/

KBR appears to concede that it did not comply with the express condition the DCMA placed

on Mr. Bonenclark’s pre-deposition interview; instead, KBR argues that Barko has no standing to

object to this lack of notice and that the Government seems not to care that notice was not provided.

KBR may be correct that no case or regulation requires notice of a Touhy interview, but the DCMA’s

letter is clear in its terms that notice should be provided to all parties.

The Court retains inherent power to manage discovery. Broadly speaking, Rule 30

4/

340 U.S. 462 (1951). Mr. Bonenclark is in the United States only until March 11, 2015, and will not return

until July 2015. Mr. Bonenclark’s stay has been extended to accommodate the deposition, and Barko’s counsel has been

aware of the scheduled deposition since February 23, 2015.

5/Doc 241-9 at 6 (emphasis added).

6/Doc. 242 at 21.

7/

Id. at 5-6.

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emphasizes that parties must be able to make a “fair examination of the deponent.”8/ The Court is

concerned that KBR has received the unfair advantage of conducting a pre-deposition interview in

direct contravention of the terms under which that interview was to occur. The Court is additionally

concerned that KBR’s ignoringDCMA’s express requirements will subject Bonenclark to additional

obligations to respond to discovery that would not have been needed if KBR had complied with

DCMA’s conditions.

The Court therefore orders that Barko be given an opportunity to conduct a private interview

of Bonenclark before the deposition takes place. Bonenclark must respond to questioning from

Barko without the presence of KBR. Bonenclark can have his attorney present. The interview will

be no longer than 60 minutes or the length of time Bonenclark was interviewed by KBR, whichever

is longer. The scope of Barko’s interview will be limited to the topics approved in the DCMA’s May

5, 2014, letter.

If Bonenclark submits to the interview, the Court will deny the motion for a protective order

to stop the deposition. If the DCMA or Bonenclark refuse to give the interview, the Court will grant

Barko’s motion for a protective order stopping Bonenclark’s deposition. 

Under these conditions, the Court will allow the deposition to go forward.9/ The interview

will take place at least 6 hours in advance of the deposition. If Mr. Bonenclark’s DCMA counsel

objects to such an interview, the Court will STAY the deposition pending Barko’s opportunity to 

8/

See Fed. R. Civ. P. 30(d).

9/Regardless of Barko’s lead counsel’s availability, Barko’s other lawyers could attend the deposition in person

or by videoconference. Furthermore, without wading into the numerous technicalities Barko raises as to the deficiency

of the deposition notice, the Court finds that Barko’s counsel had adequate notice of the deposition and finds good cause

for abbreviated notice pursuant to Local Rule 30.1. 

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conduct a brief pre-deposition interview to prepare for the deposition.

IT IS SO ORDERED

Dated: March 9, 2015. s/ James S. Gwin 

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

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