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Case 1:05-cv-01119-SGB Document 22 Filed 09/05/2006 Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ROCCO TOMMASEO, and
THOMAS TOMMASEO, and
ROCKY AND CARLO, INC., and
STEVEN BORDELON, husband of,
and CYNTHIA BORDELON and,
STEVE’S MOBILE HOME & R.V. REPAIR,
INC.


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UNITED STATES OF AMERICA,

Plaintiffs,

v.

Defendant.

No. 05-1119L

Hon. Susan G. Braden

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION (AND INCORPORATED

MEMORANDUM IN SUPPORT) TO COMPEL

Defendant, the United States of America, herein responds to plaintiffs’ Motion to Compel

in the above-captioned matter. Pursuant to this Court’s direction in the initial status conference

in this case, the parties initiated the discovery process. On May 12, 2006, defendant served its

first set of interrogatories on plaintiffs. Plaintiffs’ returned limited responses which were heavy

with objections. See Plaintiffs’ Responses to Defendant’s Interrogatories, attached as

Defendant’s Exhibit 1. On June 16, 2006, plaintiffs served defendant with interrogatories,

requests for admissions and requests for document production. On July 17, 2006, defendant

responded to these requests offering relevant information and several objections. Dissatisfied

with these responses, plaintiffs sent a letter to defendant detailing their concerns. Defendant

responded to this letter, but, following a conference call among the parties, the matter could not

be resolved. As a result, plaintiffs filed the motion to which defendant now responds.

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As we explain below, plaintiffs’ interrogatories and document requests go well beyond

the permissible limits of the Rules of the Court of Federal Claims and the guidance given by this

Court in the initial status conference that preceded discovery in this matter. Further, plaintiffs’

requests are in large part properly subject to objections as being overly burdensome, irrelevant to

the adjudication of this matter, or have been mooted by admissions of defendant in its Answer.

Accordingly, for the reasons set forth below, defendant asks that the Court deny plaintiffs’

motion.

I.

GENERAL RESPONSES TO PLAINTIFFS’ MOTION TO COMPEL

Defendant has stated multiple objections to plaintiffs’ discovery requests. As an initial

matter, we objected to the interrogatories as being not in compliance with Rule 33 of the Rules

of the Court of Federal Claims (“RCFC”) as they exceed the allowed number of questions and

are very burdensome due to the unlimited nature of the requests. Further, much of the material

plaintiffs seek is simply irrelevant to the claims alleged in their Complaint.

A.

Plaintiffs’ Interrogatories and Requests for Document Production Do Not Comply
With the Rules of the Court of Federal Claims

RCFC 33 allows for the parties to serve no more than twenty-five interrogatories,

inclusive of discrete subparts, absent leave of the Court to lodge more requests or a stipulation to

the same effect. See RCFC 33(a) (noting that interrogatories should not “exceed[] 25 in number

including all discrete subparts. . .”). The discovery requests propounded by plaintiffs to

defendant on June 16, 2006 contained twenty-two numbered interrogatories and at first blush

appear to comply with RCFC 33. Interrogatories 1 and 6, however, contain eleven lettered

subparts, each containing a different line of inquiry. For example, while Interrogatory 1 asks for

the identification of all studies done by the United States with respect to flooding in St. Bernard

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Parish, the subparts to the interrogatory go on to ask for the identification of all person who

participated in the creation of such studies, a recounting of the facts of each study, identification

of the authorization and funding for each study and more. These “discrete subparts” effectively

push to thirty-three the number of interrogatories plaintiffs have asked defendant to answer.

Additionally, at the end of their Requests for Admissions, plaintiffs have an additional global

interrogatory asking for the reason behind each and every denial made by defendant. This

pushes to thirty-four the total number of interrogatories forwarded to defendant by plaintiffs,

nine more interrogatories than plaintiffs are allowed under the RCFC. However, plaintiffs have

neither sought leave of the Court nor requested a stipulation from defendant in order that they

might validly exceed the twenty five interrogatories allowed by RCFC 33.

B.

Plaintiffs’ Interrogatories and Document Requests Are Not Consistent With This
Court’s Comments Regarding the Scope of Initial Discovery

In the parties’ initial status conference with the Court, defendant indicated its desire to

conduct fact depositions in this case pursuant to RCFC 30(b)(6). It is defendant’s recollection

that the Court advised that it did not think it was wise to conduct time-consuming and costly

depositions at this early stage of the case, especially in light of the expectation of dispositive

motions on jurisdictional grounds. Acting in line with its understanding of the Court’s

instructions, defendant served a limited number of interrogatories on May 12, 2006 and did not

request production of any documents. Plaintiffs, however, did not so limit its discovery. Rather,

plaintiffs served broad interrogatories and extensive requests for production on June 16, 2006.

Defendant made a good faith effort to respond to reasonable requests, but objected extensively to

the requests that were overbroad and also objected where the assembly and production of

documents would be quite costly and time consuming.

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In its response to plaintiffs’ July 19, 2006 letter, defendant raised its concern that the

plaintiffs interrogatories and document production requests were outside of the discovery limits

set by the Court in the initial status conference. (See Pltfs’ Mot. to Compel, Ex. 5 at 1).

Defendant again expressed this sentiment, to no avail, in the conference call the parties held in

an attempt to avoid this dispute.

It is clear that the parties have fundamentally different interpretations of the proper scope

the current discovery efforts should take. However, defendant believes that its approach to-date

has been more consistent with the Court’s direction regarding initial discovery between the

parties.

C.

Much of the Material Requested by Plaintiffs Is Irrelevant or Unnecessary to
Respond to Defendant’s Upcoming Jurisdictional Summary Judgment Motion

In their Motion to Compel and at the August 7, 2006 discovery conference held by the

parties, plaintiffs asserted that they need defendant’s discovery responses in order to respond to

defendant’s upcoming Motion for Summary Judgment on jurisdictional grounds. Defendant has

repeatedly assured plaintiffs that the upcoming Summary Judgment motion will be based on the

allegations in the complaint or derived from other indisputable sources such as case law and

Congressional records. Further, RCFC 56(f) allows a party in responding to a motion for

summary judgment to request a continuance or discovery if it is unable for valid reasons to

oppose the motion. Defendant suggested this was the proper way for plaintiffs to proceed and

that they should await a review of Defendant’s Motion before seeking such broad discovery.

Plaintiffs’ have apparently declined to take this approach.

In their Motion to Compel, plaintiffs contend that they need the requested discovery for

three reasons. First, plaintiffs claim that the discovery will help them “prove that the statute of

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limitations has not expired. . . .” Pltfs’ Mot. to Compel at 3. Second, plaintiffs assert that the

discovery will aid them in proving “that the Corps is responsible for the failure of its engineering

with respect to the design, construction and maintenance of the. . . MR-GO . . . .” Id. Third,

plaintiffs claim that they need discovery to show that “there is an actual cause of action for a

Fifth Amendment taking . . . in this matter.” Id.

1.

Discovery Will Not Aid Plaintiffs in Responding to a Statute of
Limitations Defense.

Much of the substantive portion of plaintiffs’ Motion to Compel is dedicated to a

discussion of the current state of statute of limitations law in the Federal Circuit. See Pltfs’ Mot.

to Compel at 4-5. The ultimate point of plaintiffs’ statute of limitations discussion is that they

feel, that by showing that the Corps has undertaken dredging and maintenance on the MRGO,

they can defeat defendant’s upcoming Motion for Summary Judgment on statute of limitations

grounds. There is no dispute, however, as to the fact that the Corps has routinely dredged and

maintained the navigation channel in order to maintain project specifications. Defendant’s

Answer in this case admits that fact. In paragraph 9 of their First Amended Complaint, plaintiffs

alleged that:

The United States, acting through the [Corps], has repeatedly and
continuously dredged the bottoms of the MRGO, removing soil that had
eroded from the banks of the MRGO into the bottom of the channel and
placing dredged soil into the Gulf of Mexico. On information and belief,
such dredging continued on a regular basis until recently and may
continue into the future.

Defendant admitted these allegations, see Answer ¶ 9. Accordingly, it is puzzling that plaintiffs

now seek further discovery to prove the fact that the Corps dredged and maintained the MRGO.

2.

To the Extent They Seek Discovery to Show That the “Corps Is
Responsible For the Failures of Its Engineering,” Plaintiffs’ Requests Are

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Irrelevant to A Fifth Amendment Takings Claim.

As noted above, it appears that plaintiffs intend to use their Fifth Amendment taking suit

to delve into the Corps’ engineering record. Pltfs’ Mot. to Compel at 3. To the extent plaintiffs

seek discovery of information to prove that the “Corps is responsible for the failures of its

engineering,” such discovery should not be allowed because it is simply irrelevant to

establishing a takings claim and aimed at proving negligence. See Moden v. United States, 404

F.3d 1335, 1345 (Fed.Cir. 2005) (noting that “the government’s liability for a taking case does

not turn, as it would in tort, on its level of care . . .). Accordingly, such discovery goes to matters

outside the jurisdiction of this Court and plaintiffs’ Motion should be denied in this respect. See

28 U.S.C. § 1491 (stating that suits sounding in tort are outside the jurisdiction of the Court of

Federal Claims).

3.

Defendant Should Not be Made to Bear the Burden of Establishing
Plaintiffs’ Cause of Action.

Plaintiffs’ final, and perhaps most troubling, stated reason for needing extensive

discovery at this early stage in the case is the need to “prove . . . that there is an actual cause of

action for a Fifth Amendment taking . . . in this matter.” Basically, plaintiffs are admitting that

this ordeal is a fishing expedition. They do not have the evidence to support their claims and

they have alleged a cause of action for which it appears they presently have no factual or legal

support. Plaintiffs have yet to identify a specific government action that affected their property

other than those that occurred approximately 3.5 miles distant from that property on the banks of

the MRGO. Quite simply, plaintiffs have floated a vague and unsupported complaint in hopes of

later developing the evidence to support such a lawsuit. Plaintiffs should not be allowed to use

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the discovery process in this way, much less when defendant is in the process of preparing the

motions which will test the legal validity of plaintiffs’ claims.

II.

RESPONSES TO PLAINTIFFS’ ANALYSIS OF SPECIFIC
INTERROGATORIES AND REQUESTS FOR DOCUMENT PRODUCTION

In their Motion to Compel, Plaintiffs analyze several of defendant’s interrogatory and

document request responses. Pltfs’ Mot. to Compel at 5-17. Defendant’s general responses to

these analyses are discussed above, but a few of the contentions require specific response. For

ease of reference, this discussion will use the same numbering system used by plaintiffs in their

motion.

Item 1

This interrogatory is indicative of the breadth of plaintiffs’ proposed fishing expedition.

The inquiry’s scope in both time (the past 50 years) and information (all reports, any people who

worked on such reports) is potentially huge and, yet, likely to yield little information of value.

Defendant specifically objected to this interrogatory on those grounds.

Item 3

At the March status conference, it was agreed that this case should await the completion

of the extensive studies then underway to determine the causes and effects of the flooding in

New Orleans as a result of Hurricane Katrina. Notwithstanding this agreement, Plaintiffs in June

sought discovery of “all witness, documents, tangible items of evidence and any other factual

basis which you contend support each and every affirmative defense you have asserted.” We

correctly responded that, as of the time of our reply, we had not identified any such witnesses or

documents, believing that the issues in this case and our affirmative defenses could be addressed

as a matter of law without the need for identification of witnesses and exhibits. We did,

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however, refer Plaintiffs to the massive IPET report as containing the best information then

available, and from which witnesses and documentary evidence likely would be obtained if

necessary.1/ This request, made at the time it was, was clearly premature and grossly

overreaching.

Item 5

Plaintiffs do not have a legitimate complaint as to defendant’s refusal to turn over drafts

of the IPET report. First, it is obvious from their analysis of Item 5 that plaintiffs already have

seen the only two previous drafts of the IPET report, otherwise they would not have known that

the language they call a “liability disclaimer” was not in the earlier versions. Second, to the

extent there were internal drafts of the pieces that ultimately composed the IPET report, those

documents are subject to the deliberative process privilege. See San Luis Obispo Mothers for

Peace v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 1326 (D.C. Cir. 1984). Defendant will

provide affidavits from agency officials supporting this claim, if necessary.

Items 6 & 10

In these two requests plaintiffs presuppose a fact very much in dispute in this cases, i.e.,

that hurricane floodwaters have in the past inundated St. Bernard Parish via the MRGO. Pltfs’

Mot. to Compel at 9, 11. Because defendant does not have any evidence that any hurricane has

ever flooded St. Bernard Parish via the MRGO, the defendant’s responses were the only possible

1/ It should be noted that, plaintiffs themselves did not provide a complete response to our own
written interrogatories asking them to identify their expert and factual witnesses. (See Def’s Ex.
1, Nos. 13, 14 and 15).

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responses that could have been provided.

Item 12

This request seeks information as to administrative claims filed by residents of St.

Bernard Parish who claim to have suffered damage as a result of flooding emanating from the

MRGO. We objected to this request as burdensome and oppressive. Apart from the lack of

specificity and particularity of the request, there is no reasonable way to respond to this request

or any likelihood that it would lead to any relevant evidence. Defendant knows of only one

lawsuit - and that a tort case - alleging damages caused by floodwaters from MRGO. The case is

Graci v. United States, 435 F.Supp. 189 (E.D.La. 1977), and, being available in a federal case

reporter, it was available to plaintiffs at any time.

III.

IN THEIR RESPONSES TO DEFENDANT’S INTERROGATORIES,
PLAINTIFFS MADE MANY OBJECTIONS SIMILAR TO THOSE OF WHICH
THEY NOW COMPLAIN

On May 12, 2006 defendant served plaintiffs with sixteen interrogatories. Of those

sixteen queries, plaintiffs objected to nine as being “premature.” (See Def’s Ex. 1, Interrogatory

Nos. 3, 4, 6, 9, 11, 12, 13, 14, 15, 16). Plaintiffs, same as defendant, then went on to answer the

questions in a limited fashion. In light of plaintiffs’ acknowledgment that it is simply too early

to answer some of the questions that must be asked in this case, it is incongruous of them to

expect defendant to have all the answers. Plaintiffs are essentially trying to shield themselves

with the current posture of this case but they do not wish to allow defendant under that shield

with them. To the extent plaintiffs have objected to producing evidence or witnesses at this

point, (See Def’s Ex. 1, Interrogatory Nos. 4, 6, 9, 11, 12, 13, 14, 15, 16), they should not now be

allowed to force defendant to reply to similar interrogatories (See Pltfs’ Mot. to Compel, Ex. 3,

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Interrogatory Nos. 3, 13, 14, 15, 16, 20).

CONCLUSION

Defendant properly objected to most of plaintiffs’ requested discovery and gave valid

reasons for its objections. We stand upon those objections, and for the reasons stated therein

and, for the foregoing reasons, respectfully ask that plaintiffs’ Motion to Compel be denied.

Dated: September 5, 2006.

SUE ELLEN WOOLDRIDGE
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice

s/ Fred R. Disheroon
FRED R. DISHEROON, Special Litigation Counsel
MARK T. ROMLEY, Trial Attorney
Natural Resources Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D. St. N.W., Room 3022
Washington, D.C. 20004
Telephone: (202) 616-9649
Fax: (202) 616-9667

COUNSEL FOR DEFENDANT

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