In the United States Court of Federal Claims

No. 14-251 C

(Filed December 20, 2016)

UNPUBLISHED

* * * * * * * * * * * * * * * * * * * * * *

BISHOP HILL ENERGY LLC *

and INVENERGY WIND LLC, * Motion to Compel Responses to

 * Interrogatories; Motion to Quash

Plaintiffs, * RCFC 30(b)(6) Deposition Topics;

 * Expert Discovery Appropriate to

v. * Explore Government’s Contentions

 * of Fact and Law Regarding Fair

THE UNITED STATES, * Market Value of Wind Energy

 * Facility Development Fee.

Defendant. *

* * * * * * * * * * * * * * * * * * * * * *

John C. Hayes, Jr., Washington, DC, for plaintiffs. Alycia A. Ziarno, Brian

P. Donnelly and Brian J. Whittaker, Washington, DC, of counsel. 

Miranda Bureau, United States Department of Justice Tax Division, with

whom were Caroline D. Ciraolo, Principal Deputy Assistant Attorney General,

David I. Pincus, Chief, G. Robson Stewart, Assistant Chief, S. Starling Marshall,

Blaine G. Saito and Jennifer McCollough, Trial Attorneys, Washington, DC, for

defendant.

________________________

OPINION

________________________

Bush, Senior Judge.

The court has before it Plaintiffs’ Motion to Compel Discovery Responses,

filed July 21, 2016, as well as Defendant’s Motion for a Protective Order

Quashing Bishop Hill Energy LLC’s Notice of RCFC 30(b)(6) Deposition, filed
September 14, 2016. Oral argument on the motions was held on November 29,

2016. During the briefing of plaintiffs’ motion the parties were able to resolve

some of their disputes, and just before oral argument the government

supplemented its response to two of plaintiffs’ contention interrogatories. Thus, in

the court’s view, the outstanding controversy for plaintiffs’ motion concerns five

of the government’s responses to plaintiffs’ contention interrogatories. According

to plaintiffs’ reply brief, plaintiffs seek “an order compelling Defendant to provide

timely amendments to its responses to Invenergy’s contention interrogatories.” 

Pls.’ Reply at 10.

As for defendant’s motion, at issue are two deposition topics noticed by

plaintiffs for the deposition of the government’s Rule 30(b)(6) witness. These

deposition topics largely track the topics of the five contention interrogatories that

are the subject of the remaining dispute addressed by plaintiffs’ motion. The court

therefore resolves both motions in a single opinion. Plaintiffs’ motion requesting

amended responses to the disputed contention interrogatories is denied, and the

government’s motion to quash two Rule 30(b)(6) deposition topics is granted, for

the reasons stated below.

I. Contention Interrogatories in General

The court need not dwell overlong on the caselaw cited by the parties which

states and restates various perspectives regarding the appropriateness and timing

of contention interrogatories. Much of the caselaw cited by plaintiffs, see id. at

6-7, is focused specifically on patent litigation discovery, a type of discovery not

at issue in this case. The government, for its part, relies on a number of cases that

are not binding on this court, and which are not sufficiently analogous to this case

to provide much useful guidance. See Def.’s Opp. at 7-8, 14-15. Defendant does

cite to one case, however, which has a great number of parallels to the current

dispute, and which evinces a well-reasoned analysis of the proper use and timing

of contention interrogatories in circumstances similar to those present in this case. 

Id. at 16. The case cited by defendant, BB & T Corp. v. United States, 233 F.R.D.

447 (M.D.N.C. 2006), provides a persuasive analysis that guides this court in

resolving the parties’ discovery dispute. The court notes, too, that it enjoys wide

discretion in resolving discovery disputes and scheduling discovery so that cases

before it may proceed justly and efficiently. See, e.g., Schism v. United States, 316

F.3d 1259, 1300 (Fed. Cir. 2002) (en banc) (“A trial court ‘has wide discretion in

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setting the limits of discovery.’” (quoting Moore v. Armour Pharm. Co., 927 F.2d

1194, 1197 (11th Cir. 1991))).

BB & T provides an explanation of the use of contention interrogatories: 

[When a] plaintiff seeks to discover [a] defendant’s

factual and legal bases for its defense[,] [t]his type of

discovery is termed “contention discovery” and is

usually conducted by serving “contention

interrogatories” as opposed to taking a deposition of a

party or its attorneys.

233 F.R.D. at 447. It is important to note that in BB & T, the contention discovery

targeted the government’s rejection of certain deductions on the plaintiff’s tax

return. Id. Similarly, in this case, plaintiffs’ contention discovery targets

Treasury’s rejection of the amount of plaintiffs’ claimed cost basis for a wind

power facility, an amount which is determinative of the size of a grant award by

Treasury to plaintiffs. See Pls.’ Reply at 7 (noting that plaintiffs’ contention

discovery focuses on the “central issue to Plaintiffs’ claim,” i.e., “the very

justification given by Treasury for reducing Bishop Hill’s grant award”). Thus,

the contention discovery disputes in BB & T and in this case are quite similar in

focus.

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The basic framework of the contention discovery dispute in BB & T

involved both contention interrogatories and contention depositions, as does the

litigation in the present case and its companion case, California Ridge Wind

Energy LLC v. United States, No. 14-250C. Just as in this case and California

Ridge, the plaintiff in BB & T began with contention interrogatories and later

turned to contention depositions when the contention interrogatories were not

fruitful:

Plaintiff did first attempt to use contention

interrogatories. Seven months [before noticing

1

/ The taxpayer in BB & T also engaged in complicated business transactions, 233 F.R.D.

at 448, analogous to the complex business transactions that underlie the wind power facility

investments of plaintiffs.

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contention depositions], BB & T served eleven

interrogatories seeking contention information. It

complains that the response by the United States fails to

identify any relevant facts and provides only a superficial

discussion of the United States’ legal basis for its

defense. . . . The Court agrees that th[e] answer given by

the United States is rather cursory.

233 F.R.D. at 448-49. In the subject matter, plaintiffs have similar complaints

regarding the government’s responses to their contention interrogatories. See Pls.’

Mot. at 16-19.

Although the BB & T court agreed with the plaintiff that the government’s

response to the contention interrogatories was “rather cursory and unhelpful,” the

court nonetheless quashed the contention depositions sought by the plaintiff. Id.

at 449. The court offered several reasons why the plaintiff would be denied

contention discovery at that stage of the litigation. Of most interest here, the

timing of the contention discovery was held to be premature. The following

excerpts of the court’s decision explain that ruling:

A third reason for granting the protective order [in favor

of the government] concerns the element of timing. And,

the timing issue implicates the much larger and more

general issue of whether contention discovery should be

allowed at all. Contention discovery, whether in the

form of contention interrogatories or contention

depositions, can be disruptive mainly because the very

nature of such questions will normally require the help of

an attorney to assist the client in providing answers. 

This type of discovery can add considerable expense to

any lawsuit. In addition to the extra cost, when lawyers

craft responses they will necessarily do so in a way that

most minimizes jeopardy to their client and, therefore,

contention discovery may yield little additional useful

information. Consequently, when the facts, evidence,

and law are relatively straightforward such as in a simple

traffic accident case, the need for contention discovery

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may be outweighed by the burdens of contention

interrogatories, much less contention depositions of

attorneys. On the other hand, when a case involves

complicated technical issues such as may arise in patent

litigation, contention interrogatories may be useful.

The instant case lies somewhere between the two. The

necessity for contention interrogatories seemingly arises

in government litigation because the government is often

making policy through an enforcement action and not

just relying on past decisions. Thus, in the instant case,

plaintiff perceives that the government, for policy

reasons, altered its position when it decided to go after

[complex business transactions] such as plaintiff’s. 

From plaintiff BB & T’s viewpoint, the government’s

defense seems like a moving target and it would like to

have the government commit itself to a particular

position and explain its reasons.

With this last proposition, the government does not

disagree, but argues that the real issue concerns the

appropriate time and manner for such revelations. The

government asserts that it has been busy during

discovery trying to learn facts and until it has a

sufficient, comprehensive view of the facts, it will not be

able to provide a final opinion concerning its

contentions. It continues that its earlier answers to the

contention interrogatories at least provided the broad

outlines of its defense. However, the Fed. R. Civ. P.

26(a)(2) report of its expert witness to be served on

February 15, 2006 will allegedly contain a complete

statement of the expert’s opinion concerning the defense,

the basis and reasons for that opinion, and the data and

information on which the expert relied. At that time,

defendant contends BB & T will have full knowledge of

the facts and legal theory of the government’s defense.

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The Court agrees with defendant that when there is an

expert report which will touch on the very contentions at

issue, the Court should normally delay contention

discovery until after the expert reports have been served,

which may then render moot any further contention

discovery. Even in a case not involving expert

witnesses, contention interrogatories should normally be

conducted at the end of discovery. Thus, an additional

reason to quash the deposition[] notices is that they are

premature.

The final reason for quashing the “contention

depositions” is that it is not clear that they are necessary. 

A court may be well advised to examine whether

contention discovery is truly necessary in any particular

case. As the United States points out, contention

discovery often requires a party to, in essence, prepare a

trial brief at an earlier time in the litigation process than

normally occurs. Without some specific reason to

require such an acceleration, the Court may well deem

the burden to outweigh the benefit. In the ordinary case,

the complaint, answer, disclosures, and discovery will

provide sufficient information about a party’s position

until such time as the filing of the dispositive motions or

trial briefs. In other cases, contention discovery may be

necessary to avoid surprises at trial. Courts may wish to

confine contention discovery to those cases where there

is a compelling, specific need for the information prior to

the filing of dispositive motions in order to keep

litigation costs down.

Id. at 449-451 (footnote and citations omitted).

Given the parallels between the discovery dispute in BB & T and the

discovery dispute in this case and its companion case California Ridge, the court

views the analysis of the discovery scheduling dispute in BB & T, particularly as to

the timing of contention discovery, to be persuasive. The court also agrees with

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the BB & T court’s general preference for contention interrogatories, rather than

contention depositions. See 233 F.R.D. at 449 (“[U]ntil a party has first shown

that the interrogatory process cannot be used, it may not seek to use depositions

for contention discovery.”). The court turns now to the contention discovery

requested by plaintiffs in this case.

II. Plaintiffs’ Contention Interrogatories

The five contention interrogatories for which defendant’s responses are still

in dispute in this case are as follows:

Interrogatory 1: Do you contend that the development

fee of $60,000,000 included as part of the cost basis in

the Bishop Hill Application exceeded open market

expectations for projects of the size of Bishop Hill and in

the location of Bishop Hill?

Interrogatory 2: If the answer to the foregoing

interrogatory is yes, set forth all facts which you contend

support that contention.

Interrogatory 15: Do you contend that the amount of

the development fees included in the cost basis of other

wind energy facilities similar in size to Bishop Hill’s and

placed in service around the same time as Bishop Hill’s

are not relevant to a determination of the fair market

value of the development fee included in the claimed

qualified cost basis of the Bishop Hill facility?

Interrogatory 16: If the answer to interrogatory number

15 is yes, set forth all facts upon which you rely to

support that contention.

Interrogatory 17: If the answer to interrogatory 15 is

that the amount of the development fees included in the

cost basis of other wind energy facilities similar in size

to Bishop Hill’s and placed in service around the same

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time as Bishop Hill’s are relevant, identify each and

every one of those wind energy projects.

Pls.’ Mot. at 5-6. Broadly, these contention interrogatories seek defendant’s

position on the fair market value of the development fee paid by Bishop Hill

Energy LLC (Bishop Hill), the relevance of the development fees paid by other

wind power facility developers for determining the fair market value of Bishop

Hill’s development fee, and the identification of wind power projects that would

be relevant for making a comparative analysis to determine the fair market value

of Bishop Hill’s development fee. The court agrees with plaintiffs that defendant

has not responded, substantively, to these contention interrogatories.

Defendant argues that these contention interrogatories are premature, and

that the government should not be compelled to respond with information which

would be more appropriately disclosed during expert discovery. According to the

government’s opposition brief:

Defendant’s objection states that if it does submit

evidence regarding the fair market value of the purported

development fee in its defense, it will do so through an

expert. Because expert reports have not been exchanged

yet, Plaintiffs’ request for such information is premature.

For example, Interrogatory No. 15 asks whether

Defendant contends that certain factors are not relevant

to a determination of the fair market value of Bishop

Hill’s development fee. But the relevant factors in

determining fair market value are, necessarily, part of an

expert’s approach to valuation. For example, an expert

may determine that the amount of development fees

included in the cost basis of wind energy facilities

similar in size to Bishop Hill’s are relevant to the fair

market value of the development fee included in the

claimed qualified cost basis of the Bishop Hill facility,

or, he or she may not consider that information relevant

at all. 

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. . . .

Defendant also objected to interrogatories 2, 16,

and 17, which seek the identification of facts or projects

underlying the responses to Interrogatories 1 and 15, as

calling for the disclosure of expert work product and/or

expert discovery prior to the deadlines for providing

such discovery. Because the questions posed by

interrogatories 2, 16, and 17 refer to facts that may

underlie potential arguments that Defendant may make

based on an expert opinion, they also fall within the

realm of expert discovery, and cannot be answered

absent expert opinion. And if an expert chose to analyze

certain wind projects in the context of his or her expert

report, the identity of those projects would be revealed in

the report.

Def.’s Opp. at 15-16. The court agrees with defendant that these particular

contention interrogatories contain requests for information that is more

appropriately obtained during expert discovery. The government’s disclosure of

its expert report, should this case proceed to expert discovery, is the appropriate

time for plaintiffs to obtain the information they seek in these five contention

interrogatories.

Plaintiffs offer a number of unpersuasive arguments contending that

plaintiffs are entitled to contention discovery now, not later in this litigation. The

court examines the most substantive of those arguments here.2 First, plaintiffs

suggest that their contention interrogatories are not early, or premature, according

to caselaw which has resolved analogous disputes over the timing of contention

discovery. Pls.’ Reply at 6-8. To the extent that the cases cited by plaintiffs

address the specific circumstances of contention discovery in patent litigation,

those cases are inapposite. None of plaintiffs’ cases are more on point than

BB & T; the court views BB & T as the most persuasive authority for the resolution

of the parties’ dispute over contention discovery.

2

/ The court has considered each of plaintiffs’ arguments, and finds them insufficient to

invalidate the sound approach taken by the court in BB & T.

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Next, plaintiffs assert that contention discovery is essential before the

parties complete depositions during the fact discovery period. Pls.’ Reply at 8-9. 

To the extent that defendant’s deposition witnesses will provide testimony of their

personal knowledge of the contemporaneous review of Bishop Hill’s development

fee, that is a narrower topic than any of the five interrogatories at issue in

plaintiffs’ motion. See Oral Argument Recording, at 2:21-24 PM (plaintiffs’

counsel noting that Interrogatory #1 asks for the government’s current contentions

regarding plaintiffs’ development fee). To the extent that plaintiffs seek

foundational information to support certain topics in their Rule 30(b)(6)

deposition, those contention deposition topics will be addressed in the next section

of this opinion. The court sees no need for substantive responses to these five

contention interrogatories before any fact witness depositions are taken in this

case.

III. The Contention Deposition Dispute

The disputed topics for the deposition of the government’s Rule 30(b)(6)

witness are:

2. Defendant’s contentions about whether the amount of

development fees included in the cost bases of other

wind energy facilities similar in size to Bishop Hill’s and

California Ridge’s and placed in service around the same

time as Bishop Hill’s and California Ridge’s are relevant

to a determination of the fair market values of the

development fees included in the claimed qualified bases

of the Bishop Hill and California Ridge facilities, and the

factual bases of those contentions.

6. Treasury’s factual knowledge of open market

expectations for projects of the sizes and in the locations

of Bishop Hill and California Ridge placed in service

between January 1, 2011 and December 31, 2012,

including Treasury’s knowledge of any such particular

projects and the development fees paid by those projects.

Def.’s Mot. Ex. A, at 2. The court notes that these two deposition topics overlap

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with the interrogatories discussed earlier in this opinion, and which are discussed

in the opinion filed today in California Ridge. Plaintiffs seek information, through

a contention deposition, regarding the relevance of the development fees paid by

other wind power facility developers for determining the fair market value of

Bishop Hill’s development fee and California Ridge’s development fee. They also

seek information regarding other wind power projects and the development fees

paid to develop those wind power plants. Contention deposition topics #2 and #6

are, to a great extent, Interrogatories #15, #16, and #17, rephrased. See Oral

Argument Recording, at 2:35-36 PM (plaintiffs’ counsel noting that the issues

addressed in the contested deposition topics and the contested interrogatories are

the same).

Defendant resists addressing these two deposition topics just as the

government resists substantively answering the five disputed contention

interrogatories at this time. Defendant argues, most importantly, that the

contention discovery sought in this fashion is premature, in that it is more

appropriately reserved for expert discovery. Def.’s Mot. at 7. The government

also notes that it is impractical and inefficient to prepare a witness for topics that

would be better answered through contention interrogatories. Id. Finally,

defendant argues that deposition topic #6 requests information that, according to a

prior ruling of this court, is overly burdensome to produce during fact discovery.

Id. at 9-10.

The court agrees with defendant that, as a general rule, a contention

deposition is disfavored when a contention interrogatory would suffice. See BB &

T, 233 F.R.D. at 449. Plaintiffs’ counsel, in effect, conceded the point at oral

argument. See Oral Argument Recording, at 2:35-36, 3:03 PM (plaintiffs’ counsel

noting that his preference would be for contention interrogatories over contention

depositions, and acknowledging that contention interrogatories are more suitable

for this type of discovery); see also Pls.’ Opp. at 1, 4-5, 11-12 (noting that

plaintiffs’ disputed Rule 30(b)(6) deposition topics were noticed for the purpose of

obtaining substantive answers that were not provided in the government’s

responses to plaintiffs’ contention interrogatories). The court also agrees with

defendant that these two contention deposition topics are premature, because they

touch on information that will be encompassed in the expert discovery

contemplated by the parties, if this case proceeds to expert discovery. The court

again relies on BB & T for its guidance as to the premature nature of contention

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discovery when expert testimony on that same topic is the most efficient means for

presenting a party’s contentions of fact and law. BB & T, 233 F.R.D. at 450. 

Finally, the court agrees with defendant that a general screening of

government data concerning other wind projects and their development fees, along

with an analysis of open market expectations in that regard, is either irrelevant and

burdensome, or a topic for expert discovery. It is not per se “discoverable,” Pls.’

Opp. at 12, because the burden of producing such information and obliging

government counsel to educate its Rule 30(b)(6) witness in that regard, especially

in light of the dubious relevance of this information, is too great. See Order of

Dec. 21, 2015, at 12.

Plaintiffs also allege that they will be handicapped in expert discovery if

their proposed contention discovery is not completed during the fact discovery

period. Pls.’ Opp. at 12. The essence of their argument is two-fold. According to

plaintiffs, their expert will be forced to construct an opinion without the benefit of

all of the data that the government’s expert will be able to access. In addition,

plaintiffs allege that the government will be free to “cherry pick” the data it

presents to both its own expert and to plaintiffs’ expert. As the court has

previously stated, however, expert discovery allows a party access to the data

underlying its opponent’s expert opinions. Order of Dec. 21, 2015, at 12. To the

extent that plaintiffs predict that the government will unfairly manipulate expert

discovery to its advantage, that is a speculative concern with no basis in fact. See

Oral Argument Recording, at 2:53-54 PM (defendant’s counsel stating that she has

no intention of cherry picking data to influence expert opinion). The court expects

both parties to collaborate in discovery in full accordance with the letter and the

spirit of the court’s rules.

IV. Conclusion 

For the foregoing reasons, plaintiffs’ request that defendant substantively

respond to its five contention interrogatories at this point in the litigation must be

rejected as premature. Further, for the reasons discussed in this opinion, the

government’s Rule 30(b)(6) witness shall not be required to respond to proposed

topics #2 and #6. Finally, the court notes that expert discovery in this case is

contingent upon plaintiffs’ claim surviving summary judgment proceedings. 

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Accordingly, it is hereby ORDERED that

(1) Plaintiffs’ Motion to Compel Discovery Responses, filed July 21,

2016, is DENIED; and

(2) Defendant’s Motion for a Protective Order Quashing Bishop Hill

Energy LLC’s Notice of RCFC 30(b)(6) Deposition, filed September

14, 2016, is GRANTED. 

 

/s/Lynn J. Bush 

LYNN J. BUSH

Senior Judge

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