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Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 1 of 17

EXHIBIT D-1

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 2 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 1

Precision Pine & Timber, Inc. v.
U.S.Fed.Cl.,2001.Only the Westlaw citation is
currently available.

United States Court of Federal Claims.

PRECISION PINE & TIMBER, INC., Plaintiff,

v.

THE UNITED STATES, Defendant.

No. 98-720 C.

March 6, 2001.

OPINION

DAMICH, J.
*1 On July 21, 2000, the Plaintiff filed a motion for
sanctions, pursuant to the inherent authority of the
Court and the Rules of the Court of Federal Claims
(“RCFC”) 26(g), 37(a), and 37(b), against
the
Defendant for engaging in a pattern of abuse of the
discovery process. The sanctions that the Plaintiff seeks
are not punitive in nature. Instead, the Plaintiff seeks
reimbursement of fees and expenses that can be broadly
categorized in three groups. First, the Plaintiff seeks
reimbursement for attempting, but failing, to secure the
Defendant's full compliance with its discovery requests.
Second, the Plaintiff seeks reimbursement for preparing
and prosecuting its motion to compel the Defendant to
respond to the Plaintiff's discovery requests. Third, the
Plaintiff seeks reimbursement for preparing and
prosecuting its motion for sanctions. For the reasons
discussed below, the Plaintiff's motion is GRANTED in
part.FN1

FN1. Due process mandates that sanctions
cannot be imposed without notice and an
opportunity for the sanctioned party to be
heard. Roadway Express, Inc. v. Piper, 447
U.S. 752, 467 and n. 14 (1980). The
Defendant stipulated that oral argument on the
motion need not be heard. (December 19,
2000, Tr. at 3.)

I. Background

The saga of the Defendant's conduct that has given rise
to this motion is amply documented in the Plaintiff's
motion for sanctions. (Pl.'s Mot. for Sanctions at 8-33).
However, highlights of the Defendant's dilatory conduct
in this case's discovery proceedings will be summarized
here.

A. The Defendant's Initial Failure to Comply with

Discovery Requests

On December 30, 1998, the Plaintiff served the
Defendant with its First Set of Interrogatories and
Requests for the Production of Documents. The
Defendant filed its response on April 1, 1999. The
responses consisted mostly of improper general
objections and blanket assertions of privilege. (March
28, 2000, Hear. Tr. at 6-7.) The Defendant also did not
identify a single document, by means of a log or
otherwise, that it withheld pursuant to any claim of
privilege. In addition, rather than submitting a request
for enlargement of time to respond to the discovery
requests, the Defendant merely made future promises to
submit non-privileged documents, e.g., “... [D]efendant
is presently engaged in a search within the applicable
agencies for the information requested, and will
supplement
response with non-privileged
information, in accordance with the Rules of this
Court.” Pl.'s Mot. at Ex. F at § 18(b) (all citations to
exhibits refer to the Pl.'s motion for sanctions). See also
Ex. F passim. The Defendant provided no documents
from offices that were likely to possess responsive
documents, including the Washington Office of the
Forest Service (including the Land and Resource
Planning Office and the Forest Management Office),
the Department of Agriculture (specifically the Office
of the Under Secretary for Natural Resources), and the
U.S. Fish and Wildlife Service. Ex. G at ¶ 3. Instead,
the Defendant produced documents that included
boilerplate documents and wildlife studies
that
appeared to be gathered from only the offices of Region
3 of the Forest Service. Id. Significantly, the Defendant
failed to specifically identify the offices it had searched

this

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Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

within the Forest Service for responsive material or
provide any detail of where the documents were sought
as required by Plaintiff's Interrogatory 19. Ex. F. at 19.

*2 On July 22, 1999, the Plaintiff wrote a letter to the
Defendant which elaborated on the deficiencies of the
Defendant's response and requested that its general
claims of privilege and generalized objections be
withdrawn. Ex. H. On August 3, 1999, the Plaintiff
memorialized in a letter a conversation between
opposing counsel in which the Defendant had agreed to
submit additional responsive documents by August 9,
1999. Ex. J. However, the Defendant failed to produce
the documents as promised. Ex. K.

log. However,

Pursuant to the Court's direction to resolve outstanding
discovery issues, counsel for both parties met to discuss
the deficiencies in the Defendant's discovery requests
on September 9, 1999. Ex. G at ¶ 6. On October 7,
1999, the Defendant submitted some additional
documents, revised answers to interrogatories, and a
privilege
failed,
accidently so it appears, to include certain responsive
documents in its submission. Ex. N. During the course
of discussions between counsel, the Plaintiff claims that
the Defendant gave assurances that it would complete
its responses by December 30, 1999. Ex. N at 8. The
Defendant disputes this, but instead recalls that it only
promised that it would make its best effort to complete
its discovery responses by January 31, 2000. Id.

the Defendant

At no time during this process, however, did the
Defendant substitute specific claims of privilege for its
general claims of privilege and general objections to
discovery requests or otherwise withdraw the general
claims of privilege.

B. Motion to Compel

On January 28, 2000, the Plaintiff filed a motion to
compel. The Defendant failed to respond to the motion.
Instead, it requested, on the day before the status
conference, a 30-day enlargement of time to respond.
The Court granted the request, but in an Order on
February 10, 2000, set a deadline of March 15, 2000,
for all supplementation of discovery responses,

Page 2

including revised responses to interrogatories. Ex. Q.
However, the only submission from the Defendant
consisted of books, law review articles, and Federal
Register notices, and a privilege log produced on March
10, 2000. Ex. T. The Defendant also failed to revise its
interrogatories in a meaningful manner, but instead
reiterated general claims of privilege and objections,
and also issued conflicting interrogatory responses.FN2
(Pl.'s Mot. at 22-23, n. 12.) The Defendant also
identified documents which it inappropriately withheld
under either the deliberative process privilege (a
privilege which generally is not recognized in the U.S.
Court of Federal Claims) or under the executive process
privilege.

FN2. The lack of care displayed by the
Defendant in its responses to the Plaintiff's
discovery requests is exemplified by the
following series of responses to Interrogatory
9(b).
This inadequate response (among others) led
the Court to characterize the quality of the
Defendant's discovery responses as “pretty
shocking.” March 28, 2000, Tr. at 47.

After the Defendant failed to fix the deficiencies in its
responses, the Court granted the Plaintiff's motion to
compel on March 29, 2000. In its Order, the Court
deemed all general objections and general assertions of
privilege by the Defendant to be waived. It also deemed
certain specific claims of attorney-client privilege and
work product immunity to be waived for a lack of
factual foundation. Finally, it ordered the Defendant to
produce the following things by April 21, 2000:(i)
justification for the deliberative process privilege, (ii)
production of all electronic mail requested by the
Plaintiff, and (iii) answers to all interrogatories. Ex. L.

*3 On April 12, 2000, the Court extended its deadline
to turn over all documents as they became available and
to provide justification for the deliberative process
privilege by May 22, 2000. It also extended the
deadline to respond to the Plaintiff's interrogatories by
May 12, 2000. Ex. W.

On April 26, 2000, the Defendant turned over a small

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 4 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

number of documents to the Plaintiff. Ex. G at ¶ 9. On
May 22, 2000, the Defendant turned over another large
box of documents despite the fact that the Court had
ordered that such documents be turned over at an earlier
date if they were available. On that same date, the
Defendant also filed a motion for protective order
which, if granted, would permit it not to respond to
interrogatory requests 9, 15, 17, and 18 on the grounds
that such discovery was not relevant to the issue of
contract interpretation. (The Defendant failed to submit
a statement that the Defendant made a good-faith
attempt to resolve a discovery dispute through a
meeting of counsel as required by Appendix G.) On
July 11, 2000, the Court granted the motion for
protective order, except with respect to interrogatory
request 9.

II. Discussion

The Court of Federal Claims possesses the inherent
authority to impose sanctions for abuses of the
discovery process in some cases. In re Greg Bailey v.
United States, 182 F.3d 860, 864 (Fed.Cir.1999)
(Courts established under Article I of the U.S.
Constitution possess the inherent power to discipline
attorneys). See also Chambers v. NASCO, 501 U.S. 32,
43, 115 L.Ed.2d 747, 96 S.Ct. 2778 (1976); Malautea
v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th
Cir.1993).FN3 The decision on whether to impose
discovery sanctions, either pursuant to its inherent
authority or under existing Rules of the Court of
Federal Claims rests within the sound discretion of the
Court. Adkins v. United States, 816 F.2d 1580, 1581-82
(Fed.Cir.1987); see also Heat & Control, Inc. v. Hester
Indus., Inc., 785 F.2d 1017, 1022 (Fed.Cir.1986).

FN3. The court stated:
Deeply rooted in the common law tradition is
the power of any court to manage its affairs
[which] necessarily includes the authority to
impose reasonable and appropriate sanctions
upon errant lawyers practicing before it. A
court may appropriately sanction a party or
attorney who shows bad faith by delaying or
disrupting the litigation or by hampering

Page 3

enforcement of a court order. (internal
quotation and citation omitted).
Malautea, 987 F.2d at 1545.

In addition to its inherent ability to impose sanctions,
the Rules of the Court provide for the imposition of
sanctions whenever a party abuses the discovery
process or violates an order of the Court. There are
three Rules that the Plaintiff believes should apply in
this case. First, RCFC 26(g) provides that an attorney
who signs a response or objection must certify that the
“... response or objection [is] to the best of the
attorney's or party's knowledge, information, and belief
formed after a reasonable inquiry ... warranted by
existing law ... [and] not interposed for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation....”
RCFC 26(g). However, if the attorney makes a
certification in violation of the rules, “... the court ...
shall impose upon ... the party on whose behalf the
request, response, or objection
... an
appropriate sanction, which may include an order to
pay the amount of the reasonable expenses incurred
because of the violation, including a reasonable
attorney's fee.” RCFC 26(g). Specifically, the Plaintiff
claims that the Court should sanction the Defendant
pursuant to RCFC 26(g) and award the Plaintiff the
costs and fees it incurred in dealing with the
Defendant's deficient responses to its discovery
requests over a protracted period of time, particularly
the Defendant's general claims of privilege and general
objections, and the Defendant's repeated failure to live
up to its own promises to adequately turn over
responsive documents and
interrogatory
responses.

is made

revise

*4 Second, RCFC 37(a) provides for reimbursement of
reasonable expenses, including attorney's fees, upon the
granting of a motion to compel unless the Court finds
that the opposition was substantially justified.FN4 In this
specific case, the Defendant never filed an opposition
to the motion to compel and provided no justification
for its lack of diligence.

FN4. Rule 37. Failure to Make or Cooperate
in Discovery; Sanctions

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Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 5 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 4

(a) Motion for Order Compelling Discovery.
A party, upon reasonable notice to other
parties and all persons affected thereby, may
apply for an order compelling discovery as
follows:
(4) Award of Expenses of Motion. If the
motion is granted, the court shall, after
opportunity for hearing, require the party ...
whose conduct necessitated the motion ... to
pay to the moving party the reasonable
expenses incurred in obtaining the order,
including attorneys' fees, unless the court
finds that the opposition to the motion was
substantially
that other
circumstances make an award of expenses
unjust.
RCFC 37(a)(4).

justified or

Third, RCFC 37(b) provides that if a party fails to obey
a discovery order, the Court has the power to impose
sanctions, including the awarding of reasonable
expenses and attorney's fees.FN5 The Plaintiff claims
that the Defendant consistently violated the terms of
five orders of the Court, repeatedly missed deadlines set
by the Court for discovery, and wrongfully filed a
motion for protective order that could have been filed
18 months previously.

FN5. Rule 37. Failure to Make or Cooperate
in Discovery; Sanctions
(b) Failure to Comply with Order
(2) Sanctions Against a Party. If a party ...
fails to obey an order to provide or permit
discovery ... the court may make such orders
in regard to the failure as are just and among
others the following:
the court shall require the party failing to obey
the order ... to pay the reasonable expenses,
including attorney's fees, caused by the
failure, unless the court finds that the failure
was substantially justified or that other
circumstances make an award of expenses
unjust.
RCFC 37(b)(2).

The Defendant, however, makes several arguments why

sanctions should not be imposed. First, the Defendant
argues that sanctions cannot be imposed upon the
inherent authority of the Court apart from a finding of
fraud or bad faith. Amsted Industries, Inc. v. Buckeye
Steel Castings Company 23 F.3d 374, 378
(Fed.Cir.1994). The Defendant argues that bad faith is
defined as a specific intent to injure the Plaintiff.
McFadden v. United States, 215 Ct. Cl. 918 (1977);
Kalvar v. United States, 211 Ct. Cl. 192 (1976).
Because the Plaintiff can neither show that the
Defendant intended to injure the Plaintiff nor engaged
in fraud, so the argument goes, the Court cannot impose
sanctions upon its inherent authority in this case.
Second, the Defendant argues that sanctions cannot be
imposed pursuant to RCFC 37(b)(2) on the grounds that
it did not violate any court orders. Third, the Defendant
argues that sanctions should not be awarded under
RCFC 26(g) on the grounds that it made a reasonable
inquiry into the adequacy of the discovery responses at
the time they were provided. Fourth, it argues that the
Plaintiff is not entitled to expenses under RCFC 37(a)
for its motion to compel because the award under the
circumstances would be unjust. Finally, the Defendant
claims that the Plaintiff seeks to have the Defendant
pay for its entire discovery effort, and that the expenses
that the Plaintiff seeks are excessive. To the extent that
any costs or fees should be awarded, only the expenses
related to the motion to compel should be granted. The
Court shall elaborate upon each of the Defendant's
arguments in turn.

A. The Inherent Authority of the Court to Impose

Sanctions

The Defendant claims, as stated above, that the inherent
power of the Court cannot be used to sanction a party
unless its actions were designed to specifically harm the
opposing party. It is true that a finding of bad faith is
normally a prerequisite to the imposition of sanctions
upon the inherent authority of the Court. Roadway
Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980);
Alyeska Pipelines Serv. v. Wilderness Soc'y, 421 U.S.
258-59 (1975). But see Chambers, 501 U.S. at 59
(Scalia J. dissenting) (noting that while fee-shifting
statutes may require a finding of bad faith, “that in no
way means that all sanctions imposed under the courts'

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 6 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

inherent authority require a finding of bad faith. They
do not.”) Simple negligence is not in of itself a ground
for the imposition of sanctions upon the inherent
authority of the Court. ViON Corp. v. United States,
906 F.2d 1564, 1566-67 (Fed.Cir.1990). However, the
Defendant reads the law too narrowly when it defines
bad faith to constitute only acts that are specifically
intended to harm a party. The Court does not merely
have the inherent authority to sanction conduct
designed to harm a party, but also to sanction conduct
that delays and disrupts the judicial process.
*5 In this regard, if a court finds “that fraud has been
practiced upon it, or that the very temple of justice has
been defiled,” it may assess attorneys fees against the
responsible party [citations omitted] as it may when a
party “shows bad faith by delaying or disrupting the
litigation or by hampering the enforcement of a court
order.” [citation omitted]

Chambers, 501 U.S. at 46 (1991). In particular “bad
faith” is further described as follows:In this regard, the
bad faith exception resembles the third prong of Rule
11's certification requirement, which mandates that a
signer of a paper warrant that the paper “is not
interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needlessly increase the
cost of litigation.

to discovery

Chambers, 501 U.S. at 46, n. 10. See also Lipsig v.
National Student Mktg. Corp. 663 F.2d 178, 181-82
(bad faith inferred in part from dilatory tactics used
during discovery). Thus, clearly, there is no reason why
the Court is constrained from using its inherent power
to impose sanctions against a party for a pattern of
conduct consisting of unreasonable delays
in
responding
requests or causing
unjustifiable increases in the costs of litigation.FN6
Because the Defendant engaged in a pattern of
unreasonable delays in fully responding to the
Plaintiff's discovery requests by consistently failing to
meet deadlines in a reasonable manner and by
maintaining patently unjustifiable objections and claims
of privilege against the Plaintiff's requests, the Court
can exercise its inherent powers to sanction the
Defendant's conduct to the extent necessary.FN7

Page 5

FN6. The Defendant's reliance on McFadden
and Kalvar for the proposition that only
malice supports a finding of bad faith is
misplaced because the context of these cases
concerns
the conduct of government
contracting officers, and not the conduct of
government counsel during the course of
litigation.

FN7. A federal court is permitted to sanction
bad-faith conduct by means of its inherent
power even though the same conduct can be
sanctioned under other rules. Chambers, 501
U.S. at 50. However, the Court must exercise
caution in sanctioning a party by means of its
inherent power when the Rules of the Court
may be available. The Supreme Court has
noted that “(b)ecause inherent powers (to levy
attorneys' fees for bad faith) are shielded from
direct democratic controls, they must be
exercised with restraint and discretion.”
Roadway Express, Inc. 447 U.S. at 766.
Therefore, it is more appropriate in this case
for the Court to sanction the Defendant first
by means of the fine scalpel of the Rules of
the Court before availing itself the bludgeon
of its inherent powers. The Court imposes
sanctions, upon its own inherent authority, on
the Defendant
its pattern of
non-cooperation with the Defendant from
April 1, 1999, to May 22, 2000, and the
prosecution of this motion for sanctions only
to the extent that the Defendant would
otherwise escape sanctions because of lacunae
in the coverage of sanctions imposed by other
Rules of the Court.

for

B. Sanctions are warranted under RCFC 26(g) for the

Defendant's improper discovery responses

RCFC 26(g) requires that an attorney or party certify
that a response or objection to a discovery request is
“not unreasonably burdensome or expensive, given the
factual and legal context of the case.” RCFC 26(g). The
requirements closely mirror the oft-quoted RCFC 11
requirement that a pleading or motion be certified by
the attorney and the party that “after a reasonable

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 7 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

inquiry [the pleading, motion or other paper] is well
grounded in fact and is warranted by existing law.”
RCFC 11. The standard for imposing sanctions under
RCFC 26(g), as well as RCFC 11, is whether an
attorney or a party who signs a certification failed to
make a reasonable inquiry into the facts supporting the
discovery document. Thorton-Trump v. United States,
12 Cl.Ct. 127, 130 (1987). Proof of subjective bad faith
is not required for the imposition of sanctions against a
party pursuant to RCFC 26(g). Id. Whether a
“reasonable inquiry” has been made is judged under a
standard of objective reasonableness. Oregon RSA No.
6 v. Castle Rock Cellular, 76 F.3d 784, 790 (9th
Cir.1996). See also Adv. Com. Note to Fed.R.Civ.P.
26(g) (1983) (“Ultimately what is reasonable is a matter
for the court to decide on the totality of the
circumstances”). While it is true, as the Defendant says,
that if a party supplements discovery responses with
newly discovered evidence, RCFC 26(g) is not
violated; FN8 nevertheless, if a party fails to make an
reasonable inquiry into the facts supporting the
representations contained within
the discovery
document, RCFC 26(g) mandates the imposition of
sanctions. However, the form of sanction to be imposed
pursuant to RCFC 26(g) is within the discretion of the
Court. See Jankins v. TDC Management Corp., Inc. 131
F.R.D. 629, 634 (D.D.C.1989).

FN8. See Dixon v. Certainteed Corp., 164
F.R.D. 685, 691 (D.Kan.1996).

*6 The Plaintiff claims that under RCFC 26(g), the
Defendant is required to pay its expenses, including
attorney's fees, because it raised improper general
objections and improper general assertions of privilege,
failed to provide a factual basis for its assertion of
attorney-client privilege and work-product doctrine, and
improperly conflated the deliberative process privilege
and executive process privilege. The Defendant,
however, claims sanctions should not be imposed
pursuant to RCFC 26(g) because it made a reasonable
inquiry into the adequacy of its responses at the time
they were provided. Specifically, the Defendant states
that it is common practice to respond to overbroad
interrogatories with general objections for the purpose
of preserving objections. It also argues that it was

Page 6

reasonable to turn over documents at a later date
because discovery requests of the Plaintiff were overly
broad. Finally, it argues that the Plaintiff was not
prejudiced by the general assertions of privilege
because no document was ever withheld from the
Plaintiff.

The Defendant's arguments are without merit. It is well
established in federal practice that broad and sweeping
objections to interrogatory and document requests are
improper. See In Re Folding Carton Antitrust
Litigation, 83 F.R.D. 260, 263 (N.D. Ill 1979). The
Court, in granting the Plaintiff's motion to compel on
March 29, 2000, determined that these objections and
claims of privilege were deemed waived along with
other specific claims of privilege. Furthermore, in the
March 28, 2000, status conference, the Court stated for
the record that “[i]nterrogatories were not answered
completely. Electronic mail has not been produced. The
privilege log is inadequate. Documents were identified
in answers to interrogatories, but not produced.”
(March 28, 2000, Tr. at 4.) The Court later in the same
hearing characterized conflicting discovery responses
by the Defendant as a “mess.” (March 28, 2000, Tr. at
69 .) The Court further expressed its overall displeasure
with the Defendant's conduct by stating that “the
defense has sins as scarlet.” March 28, 2000, Tr. at 83.
Importantly, it appears that the Defendant only
uncovered relevant documents that were readily
obtainable one year after the first production of
documents which itself was the product of several
motions for time extensions. (March 28, 2000, Tr. at 5.)
The record clearly shows that the Defendant did not
make a reasonable inquiry into the adequacy of its
responses under the circumstances. The explanation
that is most consistent with the Defendant's repeated
delays in responding to discovery and meaningless
discovery responses is not that the Plaintiff's discovery
requests were overly broad, but that there was a serious
breakdown in Defendant's conduct of discovery in this
case. The Defendant's argument that the Plaintiff was
not prejudiced since no document was ever withheld
pursuant to a claim of privilege likewise fails, as the
unwarranted objections and claims of privilege
prevented discovery from being completed in a timely
fashion. The Plaintiff was unable to know what
documents were being withheld by the Defendant until

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Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

9 months after the discovery requests were issued,
resulting in additional expenses that it otherwise would
not have incurred. Because the Defendant's discovery
responses were neither warranted by existing law nor
interposed for a proper purpose, the Court is mandated
under RCFC 26(g) to impose sanctions. Accordingly,
the Court determines that the Defendant should pay for
the reasonable expenses, including attorneys' fees,
incurred by the Plaintiff for securing the Defendant's
adequate response to its discovery requests from April
1, 1999, to May 22, 2000.

C. Sanctions are appropriate because the Plaintiff
largely prevailed on its motion to compel under

RCFC 37(a)

*7 RCFC 37(a)(4) provides that if a motion to compel
is granted in part and denied in part, “the court may
apportion the reasonable expenses incurred in relation
to the motion among the parties and persons in a just
manner.” The Plaintiff argues that it is entitled to
sanctions because it mostly prevailed on its motion to
compel filed on January 28, 2000. The Defendant
claims that sanctions should not be awarded for the
motion to compel because Precision Pine's discovery
and motion to compel were overbroad, all responsive
documents were eventually produced, and that the
Defendant at all times acted in good faith. The
Defendant's arguments are essentially
the same
arguments that it proffered as to why sanctions should
not be imposed pursuant to RCFC 26(g). Because the
Court has already determined that the Defendant's
responses were unwarranted and that the objections
were
the
Defendant's opposition cannot be said
to be
substantially justified. It is entirely just, therefore, for
the Plaintiff to be awarded the fees and expenses
incurred for prosecuting its motion to compel.FN9

interposed for an

improper purpose,

FN9. It is particularly significant that the
Defendant never filed a response to the
Plaintiff's motion
to compel and never
attempted to justify its failure to adequately
respond
the Plaintiff's substantive
arguments.

to

Page 7

D. Because the Defendant did not disobey any Court

Orders, sanctions are not warranted under RCFC

37(b)

The Plaintiff argues that the Defendant failed to obey
five Orders of the Court. First, the Defendant failed to
obey the Court's February 10, 2000, Order which
required it to update its production of documents and to
revise its answers to interrogatories by March 15, 2000,
and required it to file a brief by March 22, 2000.
Second, it failed to obey the Court's March 29, 2000,
Order by failing to uphold the deadline imposed by the
Court to complete discovery (a deadline that the Court
later extended). Third, the Defendant failed to obey the
Court's April 12, 2000, Order by failing to complete
discovery responses and provide a factual basis for its
assertions of privilege by May 22, 2000, as required,
but instead filed a motion for protective order. Fourth,
the Plaintiff alleges that the Defendant failed to obey
the Court's May 25, 2000, Order. However, because the
Plaintiff failed to provide a substantive explanation as
to how the Defendant failed to abide by the Order, the
Court need not consider its allegation further. Fifth, the
Plaintiff alleges that the Defendant failed to abide by
the Court's Modified Standard Special Procedures
Order of May 20, 1999.FN10

FN10.
Abuse of the Discovery Process. Counsel are
warned not to abuse the discovery process. If,
after this cautionary order by the court, either
counsel makes excessive demands or provides
insufficient responses, appropriate sanctions
(including, but not limited to, more stringent
controls over discovery, restrictions on the use
of evidence, and imposition of attorney's fees
and costs) may be ordered. See RCFC 37(b).
Modified Standard Special Procedures Order
at 10. The Court, however, does not intend to
impose any sanctions based on its May 20,
1999, Order because the Rules of the Court
and the inherent authority of the Court
sufficiently address the Defendant's wrongful
course of conduct.

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Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

There are two explicit limitations to the imposition of
sanctions pursuant to RCFC 37(b)(2). “The rule
expressly requires that the sanctions must be ‘just’; and
the sanction must relate to the particular claims to
which the discovery order was addressed.” Morris v.
United States, 37 Fed. Cl. 207, 213 (1997) (citing
Insurance Corp. Of Ireland v. Compagnie des Bauxites,
456 U.S. 694, 707, 102 S.Ct. 2099, 2106, 72 L.2d. 492
(1982)). However, the Court finds that sanctions are not
warranted in this instance because the Defendant did
not, strictly speaking, violate the terms of any Order of
the Court.

1. The Defendant did not violate the Court's February

10, 2000, Order

*8 The Plaintiff seeks the imposition of sanctions
against the Defendant for failure to comply with the
Court's March 15, 2000, deadline to update its
discovery responses,FN11 and March 22, 2000, deadline
to provide a brief on outstanding issues. The Defendant
missed the March 15 deadline, but instead, on the
afternoon of March 27, 2000, 12 days after the deadline
had passed, submitted a privilege log that was little
different from earlier privilege logs that needed
updating and made one change to its interrogatory
responses. The Defendant, rather than revising its
interrogatory response, merely replaced it with an
earlier generalized response. The Defendant claims that
sanctions should not be imposed because it did not
violate the terms of the Order; or, in the alternative, it
was confused as to the terms of the February 10, 2000,
Order. The Defendant states that, as of March 15, 2000,
it believed that it was not necessary to update its
responses. There can be little doubt that, in light of the
Court's March 29, 2000, Order which waived its
generalized objections and claims of privilege, the
Defendant's responses were objectively deficient.
However, the phrase “as necessary” in the Court's
February 10, 2000, Order gave the Defendant some
discretion in the manner in which it was to comply with
the Plaintiff's discovery
requests. However
unreasonable the Court finds the Defendant's lack of
diligence in complying with the Plaintiff's discovery
requests to be, the Defendant did not, strictly speaking,
violate the February 10, 2000, Order.

Page 8

FN11.
On or before March 15, 2000, the Defendant
will update, as necessary, its production of
documents and
to
interrogatories. The Defendant has represented
that it will produce information as soon as
possible; all updates will not be provided on
March 15, 2000. (emphasis added).
March 15, 2000, Order at 1.

its answers

revise

2. The Defendant did not violate the terms of the

March 29, 2000, Order

The Plaintiff states that the Defendant failed to comply
with the terms of the March 29, 2000, Order because it
failed to respond to the remaining discovery matters by
the deadline of April 21, 2000. However, on April 12,
2000, the Court extended the deadline to respond to
discovery by May 22, 2000. While the Defendant's
delays in responding to the Plaintiff's discovery
requests in this instance were less than admirable in
light of the Defendant's ongoing pattern of delays, the
Defendant did not, strictly speaking, violate the terms
of the March 29, 2000, Order.

3. The Defendant did not violate the terms of the

April 12, 2000, Order

The Plaintiff claims that the Defendant should be
sanctioned for violating the terms of the April 12, 2000,
Order on two grounds. First, the Defendant served
responsive documents to the Plaintiff's discovery
requests on the deadline of May 22, 2000, despite the
fact that the April 12, 2000, Order mandated that the
documents shall be produced “as they become
available.” Second, the Defendant filed a motion for
protective order on May 22, 2000, requesting the Court
rule that it need not respond to some discovery requests
on grounds that could have easily been ascertained a
year earlier. However, the Defendant points out,
correctly, that the Court largely granted its motion for
protective order on July 11, 2000. While the Defendant
undoubtedly should have filed its motion for protective
order shortly after the discovery requests were first
propounded, the Defendant's motion proved to be

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Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 10 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

meritorious. Hence, it would be unjust to impose
sanctions for expenses related to the Plaintiff's
opposition to the motion for protective order.

*9 With respect to the serving of responsive documents
at the time of the deadline of May 22, 2000, the Court
is unable to ascertain for certain whether in fact the
Defendant could have delivered the documents to the
Plaintiff at an earlier date, or whether the Defendant's
counsel received the documents from government
agencies at a late date. Because it is reasonably possible
that the Defendant was unable to comply with that
provision of the Order, the Court declines to find any
violation of the April 12, 2000, Order.

E. Summary of Sanctions Imposed

To recap, the Court is imposing sanctions against the
Defendant for its abuse of the discovery process from
April 1, 1999, to May 22, 2000. The sanctions break
down as follows.
• Sanctions are imposed against the Defendant pursuant
to RCFC 26(g) to compensate the Plaintiff for securing
the Defendant's compliance with discovery responses in
that the Defendant:
1. Interposed improper general objections to the
Plaintiff's discovery requests;
2. Interposed improper general assertions of privilege;
3. Failed to provide a factual basis for its assertion of
privilege and work product immunity; and
4. Improperly asserted the deliberative process privilege
and conflated it with the executive process privilege.
• Sanctions are imposed against the Defendant pursuant
to RCFC 37(a) to reimburse the Plaintiff for its
successful prosecution of its motion to compel.
• Sanctions are imposed against the Defendant pursuant
to RCFC 37(a) to reimburse the Plaintiff for its
successful prosecution of its motion for sanctions.
• Sanctions are imposed against the Defendant pursuant
to the inherent authority of the Court to the extent that
the Court's Rules do not cover the Defendant's pattern
of delaying discovery from April 1, 1999, to May 22,
2000.

As a final note, the Court wishes to emphasize that the

Page 9

sanctionable conduct of the Defendant is not the
responsibility of only one person. The conduct that the
Court sanctions today has occurred over an extended
period of time on the watch of more than one counsel.
Additionally, because agency offices that likely
contained responsive documents were never searched
for over a year, the Court believes that the Forest
Service and the Department of Agriculture did not fully
cooperate or communicate with the Department of
Justice during
the course of discovery.
Miscommunication between Department of Justice
counsel and the agencies that they defend does,
unhappily, occur from time to time. Rarely, however,
are the problems that the Court encountered in this case
so acute. The year-long delay in rectifying its patently
deficient discovery responses inexcusably prejudiced
the Plaintiff by causing it to waste valuable resources in
prosecuting its case.

F. Calculation of Reasonable Fees and Expenses of

the Plaintiff

1. Standard of Calculation of Fees and Expenses

When sanctions are imposed under RCFC 26(g) and
37(a), as well as the inherent authority of the Court, the
sanction imposed shall relate only to the moving party's
wasted expenses that were “incurred only because of
the inexcusable or dilatory conduct of the other party.”
M.A. Mortenson v. United States, 15 Cl.Ct. 362, 364
(1988). The Court has two goals in imposing sanctions:
(1) to deter the Defendant from engaging in dilatory
conduct in responding to discovery requests in the
future, and (2) to compensate the Plaintiff for the
additional expenses that it incurred in securing the
Defendant's full response to its discovery requests.

*10 The Court, in calculating the amount of sanctions
to be awarded must determine whether the attorneys'
fees requested by the Plaintiff are reasonable. To this
end, the Court will be guided by the “lodestar”
approach established by the Supreme Court in Hensley
v. Eckerhart.FN12 The Court will take the number of
hours reasonably expended as a result of the sanctioned
conduct multiplied by a reasonable hourly rate as the

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 11 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

starting point.FN13

FN12. 461 U.S. 424, 103 S.Ct.1933, 76
L.Ed.2d 40 (1983).

FN13. Hensley, 461 U.S. at 433. See also
Persyn v. United States, 36 Fed. Cl. 708, 715
(1996).

2. Calculation of Precision Pine's Fees and Expenses

The Plaintiff, in its motion for sanctions and its reply,
claims $88,990.38 in fees and expenses for which it
requests reimbursement. The Defendant argues that the
amount of fees and expenses requested by the Plaintiff
is outrageous and that the Plaintiff is simply seeking to
shift almost the entire cost of discovery to the
Defendant. In particular, the Defendant objects to
awarding fees and expenses incurred for filing the
motion for sanctions which the Court grants today, and
for the Plaintiff's opposition to the Defendant's motion
for protective order. The Court agrees that the
Defendant should not have to pay for any fees or
expenses related to the motion for protective order
which the Court largely granted. However, the Plaintiff
is entitled to be reimbursed for reasonable fees
expended on the motion for sanctions. The Plaintiff
filed its motion for sanctions because the Court, in its
March 29, 2000, Order, deferred any decision on the
Plaintiff's request for sanctions in its motion to compel.
Because the Plaintiff has largely prevailed on both the
motion to compel and the motion for sanctions, it is
right and just for the Defendant to pay for the fees and
expenses of the motion for sanctions which likely never
would have been filed had the Defendant conducted
discovery in a responsible manner.

Page 10

included a billing record for its discovery matters from
April 2, 1999, to August 18, 2000, in its motion for
sanctions. Ex. X. It has also included within its reply
brief a billing record for services in connection with
drafting the same. Pl.'s Reply at Ex. 2. Unhelpfully, the
Plaintiff provides only a chronology of fees expended
and does not sort the fees by the expense to which the
fee refers. Nevertheless, the Court is satisfied that the
records are sufficiently precise and itemized for some
sanctions to be awarded However, the Court finds that
some of the hours expended by the Plaintiff are not
reasonable, and that some of the hours were expended
on matters that do not appear to be the result of
sanctioned conduct. Such fees and expenses are not
recoverable. For instance, the Plaintiff requests fees for
time expended reviewing documents initially served by
the Defendant from April 2, 1999, until July 16, 1999.
These fees would have been incurred even if the
Defendant had made a complete response to the
Plaintiff's discovery requests. Such fees cannot be
recovered at all. A further problem is that some of the
time entries are vague.FN14 The Court cannot in some
instances determine whether time was expended on
dealing with the Defendant's defective responses or
some other aspect of this litigation. The Plaintiff cannot
recover such expenses. Nevertheless, whenever the
Court determines that the Plaintiff's counsel billed for
time related to obtaining complete discovery responses
from April 1, 1999, until May 22, 2000, the Defendant
will be required to reimburse the Plaintiff's fees.

FN14. An example of a vague time entry
include one dated June 6, 2000, in which the
attorney “continue[d] to work on discovery
issues.” Ex. X at 19.

i. Motion for Sanctions

a) Whether the Hours Expended by the Plaintiff Were

Reasonable.

As an initial matter, the moving party must submit
records that are sufficiently itemized and specific for
the Court to make a determination of the reasonableness
of the hours. Naprano Iron and Metal Co. v. United
States, 825 F.2d 403 (Fed.Cir.1987). The Plaintiff has

*11 The Defendant argues that the amount of time
spent for drafting the motion for sanctions is too high
because the length of the motion for sanctions is
approximately the same length as the motion to compel,
that it cited fewer cases than the motion to compel, and
that it cited the same facts. The Court finds this
particular argument to be somewhat unconvincing
because the legal theories and the arguments of the

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 12 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

motion for sanctions and the motion to compel are in
fact different even though they are substantively based
on the same underlying course of events. However, the
amount of time researching and drafting the motion for
sanctions is in excess of 186 hours, most of which was
performed by Mr. Somech. The Court is cognizant of
the fact that there is little case law on the imposition of
discovery sanctions in this Circuit which makes legal
research difficult, particularly for a junior associate.
Nevertheless, the Court based on its own experience
finds that the amount of time expended on researching
and drafting the motion for sanctions is unreasonably
high.FN15 The problems with the time description of the
Plaintiff's responses are exacerbated by the lack of
detailed descriptions in some instances which would
permit the Court to ascertain exactly which portion of
the Plaintiff's time expended was unreasonable and
which was not.FN16 Therefore, the Court shall reduce the
amount of fees expended in preparing and drafting the
sanctions by 55 hours. Accordingly, the amount of
reasonable time expended on the motion for sanctions
is found to be in excess of 129 hours, a lower amount of
time expended than on the motion to compel. The
reasonable amount of hours expended by Mr. Somech
will be reduced accordingly.

FN15. For example, on July 13, 2000,
Plaintiff's counsel spent 5.8 hours “preparing
exhibits for motion for sanctions.” Ex. X at
10. The amount of time spent compiling
exhibits is very unreasonable given the fact
that most of the exhibits are very much the
same as the motion to compel.

FN16. A representative time entry submitted
by the Plaintiff is that of July 3, 2000.
“Continue preparing motion for fees.” Had the
total amount of time expended on the motion
for sanctions been reasonable, this and other
time entries might have been
similar
satisfactory. However, under
the
circumstances, the time entry and ones similar
to it lack the specificity necessary for the
Court to effectively determine whether the
time expended was reasonable.

Page 11

ii. Expenses

The Plaintiff has requested $2,662.55 in expenses.
These expenses include $967.52 in computer research,
$71.25 for courier, $933.95 for court reporters, $168.80
for facsimile, $4.40 for long distance phone calls,
$421.20 for photocopying, $19.93 for postage, $67.50
for secretarial overtime, and $8.00 for
travel.
Undoubtedly, the Plaintiff has incurred expenses in
preparing and researching the motion to compel and the
motion for sanctions. Regrettably, however, the
Plaintiff does not relate any of the expenses to specific
expenditures. Because the Court is unable to ascertain
what most of the expenses were expended for, the Court
will not require the Defendant to pay any expenses
except for the expenses of procuring a court reporter.
However, the Court will only allow the recovery of
court reporter expenses for the following transcripts:
• $155.80 for the transcript of the February 9, 2000,
status conference on discovery
• $320.75 for the transcript of the March 28, 2000, oral
argument on the motion to compel

Expenses are denied for the May 25, 2000, status
conference and oral argument on the Defendant's
motion for protective order because it largely prevailed
on its motion. Expenses are also denied for the June 28,
2000, status conference because the status conference
does not sufficiently relate to the Defendant's RCFC
26(g) violations to warrant sanctions. The Plaintiff is
entitled to recover $476.55 in expenses.

b) Whether the Plaintiff's Billing Rates Are

Reasonable.

*12 The determination of a reasonable rate in
calculating a reasonable fee is made by reference to the
marketplace. Missouri v.. Jenkins, 491 U.S. 274, 285
(1989). Courts generally find that the starting point for
calculating fees is the attorney's customary billing rate.
See St. Paul Fire & Marine Insurance Co. v. United
States, 4 Cl.Ct. 762, 772 (1984).

The Court finds that the billing rates for the Plaintiff's
counsel are reasonable. The counsel that predominately
worked on this case were Alan Saltman, the attorney of

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Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 13 of 17

Page 12

Appendix B.

IT IS SO ORDERED.

Appendix A

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

record, Richard Goeken, Paul Ebert, and Dennis
Somech. Mr. Saltman has a billing rate of $280-$290
per hour. Given his 27 years of experience of legal
practice and specialized knowledge in Federal timber
contract matters, his billing rate is very reasonable for
the Washington, DC, market. Likewise, Mr. Goeken's
billing rate of $155-$170 per hour through July 21,
2000, is reasonable given his 9 years of experience in
legal practice and his specialized knowledge in Federal
timber contract matters. Mr. Ebert's and Mr. Somech's
billing rates of $130 per hour each are also quite
reasonable for associates with one or two years of
experience in the Washington, DC, market. Because
Mr. Goeken's and Mr. Saltman's billable rates increased
between 1999 and 2000, the Court will calculate the
reasonable billable rate by setting it at the mean of the
rates charged. Mr. Goekin's reasonable billable rate
shall be set at $162 per hour. Mr. Saltman's reasonable
billable rate shall be set at $285 per hour.FN17

FN17. Mr. Saltman's billing rate increased to
$300.00 per hour and Mr. Goeken's billing
rate increased in the month of November
2000. Because
in
November is minuscule in comparison with
the time expended from April 1, 1999, to July
19, 2000, in the interest of economy, the
reasonable fee shall not be adjusted upwards.

time expended

the

The Court has determined that the Plaintiff is entitled to
recover $53,335.33 in attorney's fees and $476.55 in
expenses, for a total of $53,811.88 to be payable to the
Plaintiff upon a final adjudication on the merits of this
case.

Conclusion

The Plaintiff's July 21, 2000, motion for sanctions is
GRANTED, in part. The Defendant is ORDERED to
pay the Plaintiff's reasonable fees and expenses in the
amount of $53,811.88 upon a final adjudication on the
merits of this case. A chart describing the calculation of
fees allowed is found in Appendix A of this Opinion. A
chart describing the hours claimed and reasonable hours
allowed by general category of expenses is found in

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 14 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 13

Alan
Saltman
Gary Stevens

Ruth Tiger
Richard
Goekin
Paul Ebert

Dennis
Somech
Joanne Vella
Totals

Hours
Claimed
58.09

.40

.50
283.93

12.40

133.75

11.40
510.49

Hours
Allowed

Reasonable
Rate

42.45$285 per

hour

.40$270 per

hour
0.00N/A

184.59$162 per

hour

hour

12.40$130 per

73.95$130 per

hour
0.00N/A
313.79N/A

Total Fees

$12,098.25

$108.00

0.00
$29,903.58

$1,612.00

$9,613.50

0.00
$53,335.33

Appendix B

Hours
Requested
45.30

Hours
Granted
0.00

185.04

183.84

Review of
Discovery
Documents
Expenses
Incurred in
Securing
Compliance
with
Discovery
Responses,
Including the
Preparation
and
Prosecution
of Motion to
Compel

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 15 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 14

Expenses
Incurred for
the
Preparation
and
Prosecution
of Motion
for
Protective
Order
Expenses
Incurred for
the
Preparation
and
Prosecution
of Motion
for Sanctions
Expenses
Incurred on
Miscellaneou
s or
Unascertaina
ble Issues
Total

74.50

0.00

186.45

129.95

19.20

4.90

510.49

313.79

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 16 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 15

April 1,
1999:

October 17,
1999:

”Defendant
objects to
this
interrogatory
as overbroad,
burdensome
and
oppressive.
Defendant
further
objects on
the grounds
that this
interrogatory
seeks
privileged
information
protected by
the
attorney-clie
nt privilege
and the
attorney
work-produc
t privilege.”
”?”

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:06-cv-00305-MBH Document 21-7 Filed 04/03/2007 Page 17 of 17

Not Reported in Fed.Cl.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)
(Cite as: Not Reported in Fed.Cl.)

Page 16

March 27,
2000:

”Defendant
objects to
this
interrogatory
as overbroad,
burdensome
and
oppressive.
Defendant
further
objects on
the grounds
that this
interrogatory
seeks
privileged
information
protected by
the
attorney-clie
nt privilege
and the
attorney
work-produc
t privilege.”

Fed.Cl.,2001.
Precision Pine & Timber, Inc. v. U.S.
Not Reported in Fed.Cl., 2001 WL 1819224 (Fed.Cl.)

END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.