Securiforce International America, LLC v. United States , 2016 U.S. Claims LEXIS 936 ( 2016 )

In the United States Court of Federal Claims
No. 12-759C
Filed: July 12, 2016
* * * * * * * * * * * * * * *
SECURIFORCE INTERNATIONAL *
AMERICA, LLC, *
* RCFC 37; Motion to Compel
Plaintiff, * Discovery and for Payment
v. * of Expenses; Motion for
* Sanctions; Adequacy of
UNITED STATES, * 30(b)(6) Witness.
*
Defendant. *
*
* * * * * * * * * * * * * * *
Frederick W. Claybrook, Jr., Crowell & Moring LLP, Washington, D.C., for
plaintiff. With him were Gordon N. Griffin, Crowell & Moring LLP, and Robert J.
Wagman, Jr., Kaye Scholer LLP, Washington, D.C.
Russell J. Upton, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, Washington D.C., for defendant. With him were Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, and Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, Department of Justice,
Washington, D.C. Of counsel were Jeffrey M. Lowry, Trial Attorney, Commercial
Litigation Branch, Civil Division, Department of Justice, Washington D.C., Kay Bushman,
Senior Counsel, DLA Counsel-Energy, and Jill Rodriguez, Assistant Counsel, DLA
Counsel-Energy, Ft. Belvoir, Va.
OPINION
HORN, J.
FINDINGS OF FACT
Plaintiff, Securiforce International America, LLC (Securiforce), filed two separate
motions under Rule 37 of the Rules of the United States Court of Federal Claims (RCFC)
(2015)1 during the extended and difficult discovery in this case. Plaintiff filed a motion to
1 In reviewing plaintiff’s two motions brought under RCFC 37, the court reviewed the
language of the applicable Rules at the time each motion was filed, May 31, 2013 and
October 31, 2014, respectively. The court found no substantive, relevant differences
between the applicable Rules in May 2013, October 2014, and the current version.
compel discovery and for payment of expenses under RCFC 37(a) on May 31, 2013, after
defendant did not produce to plaintiff, in response to plaintiff’s document production
requests, contract documents pertaining to contractors other than Securiforce that were
awarded contracts under the same solicitation as plaintiff. Defendant asserted that the
requested contract documents were not relevant to plaintiff’s case, and, therefore,
defendant should not be obligated to produce them. The court held multiple, frequently
contentious, conferences with the parties regarding discovery and other disputed issues
in this case in an effort to resolve the differences between the parties and to move forward
towards trial. Plaintiff also filed another motion for sanctions on October 31, 2014, on
issues separate and distinct from the previous motion to compel, alleging that defendant
had failed adequately to investigate certain of plaintiff’s discovery requests and that
defendant had produced a RCFC 30(b)(6) witness “who had insufficient knowledge of,
and was unprepared to answer specific questions about, the narrow list of topics
Securiforce propounded.”
A brief summary of the background of this case, including plaintiff’s claims against
defendant, provides necessary context for considering plaintiff’s two motions. Plaintiff filed
an initial complaint in this court, followed by an amended complaint, which alleged that
the Department of Defense Logistics Agency Energy (DLA Energy) had awarded plaintiff
a requirements contract for fuel delivery to specific sites in Iraq, that DLA Energy had
committed multiple breaches of the contract, and that DLA Energy had improperly issued
a partial termination for convenience of the contract, followed by an improper termination
for cause. The Department of State fuel delivery sites in Iraq that were specified in the
contract awarded to Securiforce were Basrah, Umm Qasar, Embassy Baghdad,
Besamaya, Sather, Shield, Taji, and Prosperity. In its complaint, plaintiff did not seek
money damages, but, instead, sought a declaratory judgment that DLA Energy’s partial
termination for convenience and subsequent termination for cause of Securiforce’s
contract was improper because “DLA Energy committed multiple, material breaches of its
commercial-item, three-year, requirements contract with Securiforce for fuel deliveries to
eight locations in Iraq.” In addition to other alleged contractual breach claims that are not
relevant to the disposition of plaintiff’s two RCFC 37 motions, plaintiff alleged that the
government materially breached the contract by (1) repudiating its contractual obligation
to provide plaintiff with security escorts; (2) ordering “Proof of Principle” fuel shipments
that allegedly did not reflect the government’s actual fuel requirements; and (3) failing to
place orders with plaintiff for the government’s actual fuel requirements and, instead,
procuring fuel from other sources in order to satisfy the government’s requirements.
Following a trial on the merits, during which multiple witnesses testified, this court issued
its opinion on March 21, 2016, which adjudicated all the claims included in plaintiff’s
complaint in the above-captioned case. See Securiforce Int’l Am., LLC v. United States,
125 Fed. Cl. 749 (2016). In the decision, the court found that defendant had not committed
the various breaches of contract asserted by plaintiff, but that defendant had improperly
issued a partial termination for convenience of plaintiff’s contract because the contracting
officer admitted that she did not exercise her independent business judgment when
issuing the termination. The court also found that defendant had issued a proper
termination for cause of plaintiff’s contract because plaintiff could not timely deliver fuel
to the various sites specified in the contract that had been ordered by DLA Energy in
accordance with the terms of the contract.
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I. Securiforce’s May 31, 2013 Motion to Compel Discovery and for
Payment of Expenses
Plaintiff moved to compel the production of certain contract documents pursuant
to RCFC 26(b) (2015) and RCFC 37(a)(1) after the government, in response to plaintiff’s
discovery requests, did not produce requested documents asserting that the documents
were not relevant. Specifically, plaintiff moved to compel the production of contract
documents related to (1) security escorts for other contractors that were awarded
contracts under the same solicitation as Securiforce; and (2) “Proof of Principle” orders
placed with other contractors that were awarded contracts under the same solicitation as
Securiforce. Plaintiff seeks costs related to the filing of its motion, as well as attorney’s
fees, for a total amount of $219,194.00.
During discovery in the above-captioned case, plaintiff served document requests
upon defendant that were apparently designed to support its breach of contract claims,
including that defendant allegedly had repudiated its contractual obligation to provide
plaintiff with security escorts and had improperly ordered “Proof of Principle” fuel
shipments that allegedly did not reflect the government’s actual fuel requirements for the
Department of State sites designated in plaintiff’s requirements contract. Plaintiff’s motion
to compel specifically identifies document requests 11 and 12 as the requests at issue:
11. All documents, including but not limited to contract modifications,
notices, and correspondence, related to security for other contractors
awarded contracts under the Solicitation.
12. All documents related to notices issued to other contractors awarded
contracts under the Solicitation requesting contractors to conduct a Proof of
Principle.
In response to plaintiff’s document requests 11 and 12, defendant objected, as follows:
The Government objected to these requests, principally on the grounds that
they are overly broad and unduly burdensome, and because they call for
the production of documents that are neither relevant nor reasonably
calculated to lead to the discovery of admissible information.
Subsequently, defendant sent a letter to plaintiff on May 15, 2013, further clarifying its
objections to plaintiff’s document production requests 11 and 12. In the letter, defendant
maintained its objection and explained that, “[t]o the extent Securiforce seeks documents
relating to different contractors performing under different contracts for deliveries to
different sites maintained by a different Government agency, the Department of Defense,
we stand by our objections.” According to defendant, however, in order “[t]o ensure
Securiforce receive[d] all documents to which it is reasonably entitled” and “to avoid
burdening the Court with an unnecessary discovery dispute,” defendant offered to
produce “responsive documents relating to other contractors performing under the
contract originally awarded Securiforce. . . which provided for deliveries of fuel to various
Department of State sites in Iraq.” Approximately two weeks later, on May 31, 2013,
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plaintiff filed its motion to compel discovery and for reimbursement of expenses incurred
in filing its motion to compel in the amount of $219,194.00.
After a status conference was held with the parties on June 25, 2013 to discuss
plaintiff’s motion to compel, the court ordered plaintiff to file a motion in limine addressing
“whether the contract at issue in the above-captioned case required defendant to provide
security for plaintiff’s fuel deliveries, as well as whether the contract permitted defendant
to request that plaintiff make ‘proof of principle’ deliveries,” with an opportunity for
defendant to submit a reply brief. Thereafter, plaintiff filed a motion in limine and for partial
summary judgment and the parties conducted briefing on the motion. After another status
conference with the parties on December 4, 2013, the court issued an Order stating that
“Plaintiff’s May 31, 2013 Motion to Compel Discovery and for Payment of Expenses, July
23, 2013 Motion in Limine and for Partial Summary Judgment, and November 8, 2013
Motion to Amend the Court’s October 30, 2013, Order are DENIED at this time.”
(capitalization and emphasis in original). The court indicated to the parties during multiple
status conferences that the legal and factual issues briefed in the various motions,
including plaintiff’s motion to compel and for payment of expenses, would be deferred
until after the trial testimony had been taken and the court had the opportunity to hear the
witnesses’ testimony and review the record, which the court considered necessary to
resolve plaintiff’s motions.
In its post-trial briefing, plaintiff asked the court to revisit plaintiff’s May 31, 2013
motion to compel discovery and for payment of expenses. According to plaintiff, evidence
presented at trial reinforces the relevance of the documents sought by Securiforce in its
document production requests 11 and 12 and warrants the court’s further consideration
of plaintiff’s motion for costs. Plaintiff points out, with regard to document production
request 11, concerning security, that, during the trial, plaintiff was permitted to admit into
evidence, as plaintiff’s exhibit 1025 in the trial record, an e-mail discussing a contract for
fuel delivery that was issued under the same solicitation as Securiforce’s contract, but
held by a different contractor, “Ram,” over defendant’s objection. Also, with regard to
document production request 12, which sought documents pertaining to proof of principle
orders placed with other contractors, included in Colonel Nicholas Musgrove’s testimony
at trial was a discussion of proof of principle orders placed with other contractors.
According to plaintiff “the whole record now makes clear that both Request 11 and
Request 12 were relevant and its Motion to Compel Discovery should have been granted
in whole.” As a result, plaintiff now seeks “its costs in connection with the Motion to
Compel Discovery” and “costs associated with filing its Motion in Limine and for Partial
Summary Judgment, as that motion was filed at the direction of the court.” As explained
to the parties, the court found the motion in limine helpful to further the court’s
understanding of plaintiff’s claims heading into the trial, and for the final disposition of the
case regardless of any possible relationship to plaintiff’s document requests, although the
court deferred a decision on the issues raised in plaintiff’s motion in limine and plaintiff’s
motion for partial summary judgment until after the trial.
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II. Securiforce’s October 31, 2014 Motion for Sanctions
Plaintiff filed a motion for sanctions under RCFC 37 on October 31, 2014 arising
out of issues separate and distinct from plaintiff’s earlier May 31, 2013 motion to compel
and for payment of expenses. As indicated above, one of Securiforce’s alleged breaches
of contract was that the government relied on contractors other than Securiforce to fulfill
its fuel requirements for the Department of State sites specifically designated in
Securiforce’s contract, including the Basrah, Umm Qasar, Besamaya, Sather, Shield, and
Taji delivery sites, allegedly in violation of the requirements contract between DLA Energy
and Securiforce. In its October 31, 2014 motion for sanctions, plaintiff alleges that, during
more than a year of discovery in the above-captioned case, defendant made inaccurate
representations as to whether Securiforce’s designated sites received fuel from any
sources other than Securiforce during the life of the contract, including the period of time
between the date of contract award, September 7, 2011, and the first delivery deadline,
October 24, 2011. According to plaintiff, only after conducting an RCFC 30(b)(6) (2015)
deposition on September 5, 2014, for which plaintiff alleges the government produced an
inadequate witness, did defendant conduct a more thorough investigation into plaintiff’s
questions about fuel deliveries prior to October 24, 2011, admit that defendant’s initial
discovery responses were inaccurate, and submit revised discovery responses in October
2014. Plaintiff asserts that defendant’s investigation following the RCFC 30(b)(6)
deposition occurred more than one year after plaintiff first propounded discovery requests
seeking admissions from defendant that the government had received fuel at the sites
specified in Securiforce’s contract between September 7, 2011 and October 24, 2011.
Defendant explained that it learned new information during the September 2014 RCFC
30(b)(6) deposition that “brought to light the need for further investigation,” which it
undertook promptly following the RCFC 30(b)(6) deposition, after which defendant
promptly modified its responses to plaintiff’s discovery requests.
During discovery in the above-captioned case, plaintiff propounded interrogatories,
document requests, and requests for admissions to defendant to support its claim that,
during the pendency of the contract, the government had improperly received fuel from
sources other than Securiforce in violation of plaintiff’s requirements contract. The
contract documents sought in plaintiff’s discovery requests related to fuel deliveries to
United States Department of State locations in Iraq from September 2011 to March 2013
during a time of conflict. The relevant documents appear to have been located at DLA
Energy sites both in the United States and in Iraq at on-site offices. In March 2013, plaintiff
served document production requests upon defendant, including a request for:
All documents related to actual orders and/or delivery of diesel fuel and
motor gasoline at the eight sites awarded under the Contract from the date
of Contract award until the present, including, but not limited to, deliveries
made to the eight sites awarded under the Contract by trucking fuel from
Department of Defense Stocks in Kuwait.
In response to this document request, in July 2013, defendant produced two
spreadsheets which purported to show all diesel fuel and motor gasoline deliveries to the
eight Department of State sites covered by plaintiff’s contract between September 7,
5
2011, the date of contract award, and March 12, 2013, the date of plaintiff’s discovery
request, with no deliveries occurring prior to October 25, 2011, the day after Securiforce
first failed to deliver fuel in accordance with the terms of the contract. Plaintiff’s first
delivery deadline under the contract was October 24, 2011, and plaintiff failed to deliver
fuel in accordance with that deadline. In an e-mail sent on November 5, 2013, plaintiff’s
counsel inquired as to whether the spreadsheets were accurate and captured all of the
fuel delivery orders, electronic and hard copy, that had been placed between September
and October 2011. Defendant responded by letter on November 6, 2013, and explained
that “as reflected in the data produced, the Government placed no orders, electronic or
otherwise, in the month of September 2011. The very first orders it placed under the
contract were with Securiforce, as required, and issued verbally on October 14, 2011,”
and these were “the only deliveries requested through the October 24, 2011 delivery
deadline.” During discovery defendant explained:
[T]he Department of State urgently required fuel that Securiforce admittedly
could not deliver. So, as authorized by the contract, the Government
"covered" Securiforce's breach, procuring a limited quantity of fuel from
elsewhere. To the best of our current knowledge, covering orders were
accomplished electronically. Based on your request, however, we have
asked agency personnel to search for any hardcopy orders associated with
these deliveries, which are accurately reflected on the delivery spreadsheet
about which you inquired. In terms of source data, it is our understanding
that DLA's fuel database is designed to function exclusively or almost
exclusively by electronic means, with data input, collected, and recorded to
accurately detail the agency's global logistics efforts.
In addition to the document production requests, plaintiff propounded multiple
requests for admissions. Plaintiff propounded its first request for admissions to defendant
on April 16, 2013, in which “Securiforce sought admissions that the government had
received deliveries of diesel fuel and motor gasoline” at Department of State locations,
including Basrah, Umm Qasar, Besamaya, Sather AB, Shield, and Taji between the date
of contract award, September 7, 2011, and the November 15, 2011 termination for cause.
In its response on June 7, 2013, defendant stated that fuel had been delivered to some
of these sites (Basrah, Besamaya, Shield, Taji), but only after plaintiff was unable to timely
deliver the fuel ordered under the contract and had defaulted on the contract, thus, not in
violation of Securiforce’s requirements contract.
On November 20, 2013, plaintiff sent defendant a second request for admissions,
this time specifically asking about an e-mail, dated October 4, 2011, sent by Colonel
William Rush, which stated, in part:
we’ve tagged our KO [contracting officer] for the Jassim contract to make
mods to allow us to make deliveries to [Securiforce’s] sites with their assets
to get DoS [Department of State] and OSC-1 their initial operational stocks
IAW [in accordance with] MG Richardson’s guidance.
...
6
Through Jassim I think I can support Taji, Prosperity, Embassy, Besmaya
[sic] Shield and Umm Qasar with the orders slated for later this week.
Plaintiff alleges this e-mail indicated that, as of October 2011, DLA Energy had submitted
fuel orders to sources other than plaintiff for deliveries to the sites covered by
Securiforce’s contract. In its December 23, 2013 response to plaintiff’s request for
admissions regarding the October 4, 2011 Colonel Rush e-mail, defendant denied
plaintiff’s request for admissions and stated that the e-mail did not state or indicate that
as of October 4, 2011 DLA Energy had decided to use another contractor to deliver fuel
to Securiforce’s sites. Defendant asserted that the e-mail “reflects Col. Rush’s concern
that Securiforce, misunderstanding its contractual obligations, had refused to make timely
deliveries” as of October 4, 2011. This e-mail also was the subject of a line of questioning
during the deposition of Colonel Rush, which occurred on January 16, 2014. When
plaintiff’s counsel asked Colonel Rush: “Were there orders slated for later that week?”
Colonel Rush stated: “I don’t recall.” Colonel Rush further indicated that he believed his
e-mail to be accurate, but that “I just don’t remember the specific details of the orders.”
During his deposition, Colonel Rush also stated:
As I'm sure we'll discuss later, they weren't able to meet that time line, so I
still had customers that needed fuel. And as I recall, we had to come up with
other ways to get them fuel while waiting for SecuriForce to be able to bring
fuel into Iraq from Kuwait. And that proof of principle I believe was bringing
DOD-procured fuel that was already in Iraq, positioned in an intermediate
terminal, forward to another site by KBR [Kellogg Brown & Root], an Army
contractor.
In May 2014, plaintiff propounded an additional interrogatory, identified as
interrogatory 16, regarding the spreadsheets that defendant had produced in July 2013,
“seeking information about who had prepared the spreadsheets, the sources of the data
contained therein, and whether the government contended that the spreadsheets
captured all fuel deliveries to Securiforce’s sites” from September 7, 2011 through
November 15, 2011. Interrogatory 16 asked:
For the spreadsheets produced by the government at DLA4929 and
DLA4930, identify (a) the individual(s) that prepared those spreadsheets;
(b) the source(s) of data and other sources of information relied upon by the
individual(s) that prepared those spreadsheets; and (c) whether the
government contends that these spreadsheets capture all fuel deliveries
(including delivery of government-owned fuel) to Securiforce's sites from
September 7, 2011, through the date of Securiforce' s First Set of Document
Production Requests (March 12, 2013).
Defendant responded:
Defendant objects to interrogatory 16 to the extent it violates Rule 33(a)
because it includes multiple discreet [sic] subparts. Subject to, and without
waiving its objections, the defendant responds as follows: For the
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spreadsheets produced by the government at DLA4929 and DLA4930, the
individuals who prepared those spreadsheets were, in alphabetical order:
(a) Kellie Allison; (b) Thomas Cooch; (c) Kathleen Drohan; (d) Steven
Hurwitz; and (e) Al Morgan. The referenced spreadsheets compiled data
from the DLA Energy's Fuels Enterprise Server, DLA Energy's Defense Fuel
Automated Management System, and DLA Energy's Automated Voucher
Examination and Disbursing System. The referenced spreadsheets capture
all fuel deliveries (including delivery of government-owned fuel) to
Securiforce's sites from September 7, 2011, through the date of
Securiforce's First Set of Document Production Requests (March 12, 2013).
Still questioning the completeness and accuracy of defendant’s continued
representations and discovery responses regarding fuel deliveries to Securiforce’s sites,
in July 2014, plaintiff notified defendant of its intent to conduct a deposition pursuant to
RCFC 30(b)(6) on the following topics:
The information contained in the government’s response to interrogatory
No. 16.
Deliveries of diesel fuel and motor gasoline, including government-owned
fuel, to the sites under Securiforce’s Contract from the date of Contract
award until the date of Securiforce’s First Set of Document Requests.
The basis for government’s representations that no diesel fuel or motor
gasoline was delivered to Securiforce’s sites prior to October 24, 2011. (See
Responses to Request for Admissions Nos. 71, 72, 81, 82, 90, 91, 98, 99,
106, 107, 115, 116, 213, 215, 216, 217, 218, 219, 220)
The sources (i.e., country of origin) of diesel fuel and motor gasoline being
delivered to Securiforce’s sites.
Defendant designated a DLA Energy inventory program manager, Jack Whitaker,
as the RCFC 30(b)(6) witness, and Mr. Whitaker was deposed by plaintiff’s counsel on
September 5, 2014. During his deposition, Mr. Whitaker identified himself as an inventory
program manager for DLA Energy and stated that he had been working for DLA Energy
in the Middle East since approximately 2005. Mr. Whitaker explained that his job duties
as a DLA Energy inventory program manager included overseeing aspects of inventory,
accounting, and invoicing for fuel in the Middle East. In response to plaintiff’s counsel’s
question: “if somebody needs fuel in Iraq, what’s the process?”; Mr. Whitaker provided
testimony about DLA Energy’s processes for ordering, delivering, and paying for fuel for
sites in Iraq. Mr. Whitaker also was asked about the spreadsheets that defendant had
previously produced during discovery that purportedly captured all of the fuel deliveries
to Securiforce’s sites during the life of Securiforce’s contract. Mr. Whitaker stated that he
was familiar with the various databases listed on the spreadsheets, including “DLA
Energy’s fuels enterprise server, DLA Energy’s defense fuel, automated management
system, and DLA Energy’s automated voucher examination and dispersing system” and
was able to explain the systems to plaintiff’s counsel when asked. Mr. Whitaker testified,
8
however, that he had not spoken with any of the individuals who had prepared the
spreadsheets containing the fuel delivery information, nor had he spoken with individuals
at the sites covered in Securiforce’s contract at the relevant time period, many of whom
had no doubt moved on, as to whether fuel was received between September 7, 2011,
the contract award date, and November 15, 2011, the contract termination date. Plaintiff’s
counsel asked Mr. Whitaker if he had done “anything to go back and verify the accuracy
of the information” in the spreadsheets, and Mr. Whitaker responded: “No, I did not,” but
he stated that he had reviewed the spreadsheets and knew how the process worked, and
he explained, “[s]o on that basis, I think they’re accurate.” When asked more questions
about the data contained in the spreadsheets, Mr. Whitaker’s deposition testimony
indicated his understanding of the material captured in the spreadsheets, the coding
language used, how it was organized, and what the spreadsheet entries represented.
Although Mr. Whitaker could not define every code used in the spreadsheets, or explain
every entry, he was able to define multiple codes used and explain the context of the
information contained in the spreadsheets. For example, when asked to explain an entry
in the spreadsheets, Mr. Whitaker responded: “That’s a DoDAAC. It’s like the billing code
for a base that delivers fuel -- delivers or receives fuel. This column is for the receipt.
There’s also a DoDAAC on the other side that’s for the delivering.”
Mr. Whitaker was asked whether he reviewed the contract between DLA Energy
and Securiforce prior to his deposition, to which he replied “I've seen it. No, I didn't, like,
dig into it and review it like I would a -- you know, when a contract's awarded, does it meet
mission requirements, et cetera. I didn't look at it. Just kind of breezed through it.” Mr.
Whitaker also indicated that he had seen plaintiff’s list of topics for the deposition only the
day before, and that, in order to familiarize himself with the topics, he looked at each one
of the admissions and the spreadsheets produced by defendant in discovery. Plaintiff’s
counsel asked Mr. Whitaker “is it your understanding between September 7 and October
24, no fuel was delivered to any of the eight sites awarded to SecuriForce under their
contract?” Mr. Whitaker replied: “Yeah, I’m not sure. I didn’t look these up. I mean--.”
When asked whether it was his understanding that the Securiforce sites went without fuel
between September 7, 2011 and October 24, 2011, Mr. Whitaker stated:
I don't -- I don't know that they didn't have any deliveries. I mean, if they
were operating -- and as I said before, I'm not sure if there were people -- if
those sites were occupied during that time. But I imagine if people were
there, they had to have generators running, they needed fuel. You know,
there was a bunch of big bases that we closed during that period. There
could have been leftover fuel that was used that the Army moved to those
destinations that was excess that -- when they were leaving. I'm just
speculating. I don't know.
Following Mr. Whitaker’s deposition on September 5, 2014, the government
conducted a “follow on investigation,” and, as represented in defendant’s response to
plaintiff’s motion for sanctions,
it became clear that, although DLA Energy was the primary supplier of fuel
for the military and the Department of State in Iraq, the Army or its
9
contractor, Kellogg Brown & Root (KBR), would redistribute fuel it
purchased from DLA Energy to its forward operating bases, including to the
military located at Securiforce sites.
Defendant stated that it “immediately informed counsel for Securiforce of this new
information” during a telephone call on September 18, 2014. Approximately one month
later, on October 14, 2014, defendant served its amended discovery responses on
plaintiff in which it admitted that some DLA Energy-owned fuel was delivered to at least
four sites designated in Securiforce’s requirements contract, including Taji, Shield,
Embassy Baghdad, and Basrah, between September 7, 2011 and October 24, 2011. With
regard to Umm Qasar, Besamaya, and Sather AB, defendant indicated that there were
fuel deliveries,
to the extent that DLA Energy-owned fuel from Kuwait was delivered to
various DLA Energy-owned stock points in Iraq. Some of that fuel was
subsequently transferred to the Army. The Army then redistributed that fuel
under a LOGCAP contract with KBR to military customers at various sites
in Iraq, including the sites under the Securiforce contract. Furthermore,
during the transition, DLA Energy turned over various fuel stocks that it held
in Iraq to the Army in Iraq. The Army in turn had a policy to provide USF-I
owned fuel to the Department of State for USM-I at enduring locations.
Although defendant conceded that some fuel was received at four of Securiforce’s
designated sites, and that it is possible fuel was transferred from the Army to the
Department of State at Securiforce’s other sites, the government indicated it “was unable
to locate any records documenting fuel transfer from the Army to the Department of
State.”
Based on the deposition testimony that Mr. Whitaker offered at the RCFC 30(b)(6)
deposition, plaintiff alleges that “[t]he government did next to nothing to prepare Mr.
Whitaker to testify on its behalf.” According to plaintiff, Mr. Whitaker was an inadequate
RCFC 30(b)(6) witness. Approximately one week after Mr. Whitaker’s deposition,
plaintiff’s counsel notified defendant that Securiforce believed Mr. Whitaker was an
inadequate RCFC 30(b)(6) witness and that plaintiff intended to move for sanctions under
RCFC 37. Plaintiff also asked if defendant would be willing to produce another 30(b)(6)
witness for deposition. On September 17, 2014, defendant notified plaintiff’s counsel that
it was “willing to produce another 30(b)(6) witness, perhaps the person who ran the
reports, but remain[ed] concerned that person will still not be able to answer all of your
questions.” Defendant included a list of specific individuals “who would be able to answer
additional questions regarding the delivery of fuel to Securiforce’s sites and the source of
that fuel.” Notwithstanding defendant’s willingness to produce one or more additional
RCFC 30(b)(6) witnesses, and that defendant had identified other possible individuals
who might have additional information, plaintiff chose to file a motion for sanctions on
October 31, 2014, rather than pursue additional information through deposing other
RCFC 30(b)(6) witnesses. Therefore, no additional RCFC 30(b)(6) witnesses were
deposed prior to trial.
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Even after the trial and plaintiff’s decision not to depose additional witnesses,
plaintiff continues to press this court to impose sanctions on defendant for allegedly
providing inaccurate discovery responses for more than a year while “repeatedly and
unequivocally represent[ing] that its discovery responses were accurate.” According to
Securiforce, it was forced to continue investigating the responses in order to prove their
inaccuracy and to conduct an unnecessary deposition of an unprepared RCFC 30(b)(6)
witness. In its motion for sanctions, plaintiff alleges that this court must award costs “under
Rule 37(c)(1),(c)(2), and (d)(3) for the government’s numerous inaccurate discovery
responses necessitating [a] 30(b)(6) deposition in the first instance; and (b) under Rule
37(b)(2)(C) for producing an unprepared witness who could not testify to matters clearly
within the government’s knowledge.” 2 Plaintiff’s motion for sanctions seeks $110,833.55
in costs.
DISCUSSION
Plaintiff filed its motions for costs and sanctions pursuant to RCFC 37, which
provides various forms of relief for discovery failures and uncooperative conduct,
including sanctions in the form of a party’s reasonable expenses and attorney’s fees. See
RCFC 37. “The decision whether to impose discovery sanctions rests within the sound
discretion of the trial court.” AG-Innovations, Inc. v. United States, 82 Fed. Cl. 69, 79
(2008) (quoting Ingalls Shipbuilding, Inc. v. United States, 857 F.2d 1448, 1450 (Fed. Cir.
1988)). In determining whether sanctions are appropriate, the court may consider the
conduct of the violating party. See Goodeagle v. United States, 124 Fed. Cl. 43, 46 (2015)
(declining to impose a severe sanction that would exclude evidence “where there is no
indication that the Government acted with willful neglect or bad faith”); see also Dairyland
Power Co-op v. United States, 79 Fed. Cl. 709, 716 (2007) (“A trial court must find that
the violating party acted willfully and in bad faith”). In the above-captioned case, plaintiff
argues that “demonstrating bad faith is not a prerequisite to the Court’s awarding any
Rule 37 sanctions short of dismissal or default judgment.” (emphasis in original). See
United Med. Supply Co. Inc., v. United States, 77 Fed. Cl. 257, 268 (2007) (holding that
a finding of bad faith is not required to impose spoliation sanctions). The language of
RCFC 37 does not direct a party moving for sanctions to prove bad faith, however, the
United States Court of Appeals for the Federal Circuit has held that the “harsh remedy of
de facto dismissal is appropriate where the failure to comply with a pretrial discovery order
is due to ‘willfulness, bad faith, or. . . fault’ on the part of a litigant.” Ingalls Shipbuilding,
Inc. v. United States, 857 F.2d at 1451 (quoting Societe Int’l Pour Participants
Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 1095 (1958)).
2 In its motion for sanctions filed on October 31, 2014, plaintiff also sought “‘an order that
it be taken as established that the government fulfilled its requirements for motor gasoline
and diesel fuel at Securiforce’s awarded sites from sources other than Securiforce during
the entire term of the Contract,” an exaggeration in any event. In a joint status report filed
on November 21, 2014, however, plaintiff stated that it believed its request for this order
“is now moot,” and retracted that request.
11
I. Plaintiff’s May 31, 2013 Motion to Compel and for Payment of
Expenses
Plaintiff filed its May 31, 2013 motion to compel and for payment of expenses
seeking $219,914.00 pursuant to RCFC 26 and RCFC 37(a)(1). RCFC 26(b)(1) provides
that a party may obtain discovery, including documents, “regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” RCFC 26(b)(1). RCFC 37(a)(1)
provides that “a party may move for an order compelling disclosure or discovery.” RCFC
37(a)(1). Under RCFC 37(a)(5)(A), if a party’s motion compelling disclosure or discovery
is granted, then “the court must, after giving an opportunity to be heard, require the party
or deponent whose conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” RCFC 37(a)(5)(A). RCFC 37(a)(5)(A) explains further that the
court shall not order payment of expenses if certain exceptions apply, including “(i) the
movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or (iii) other circumstances make an award of
expenses unjust.” RCFC 37(a)(5)(A)(i)-(iii). Alternatively, if a motion to compel is denied,
the court “must, after giving an opportunity to be heard, require the movant, the attorney
filing the motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including attorney’s fees.” RCFC
37(a)(5)(B). The court shall not order this payment “if the motion [to compel] was
substantially justified or other circumstances make an award of expenses unjust.” Id.
Plaintiff seeks to recover under RCFC 37(a)(5)(A) on the theory that its motion to
compel discovery and for payment of expenses should have been granted and “requests
that the Court reconsider the provisional denial of Securiforce’s request for fees relating
to its Motion to Compel Discovery.” As discussed above, during discovery in the above-
captioned case, plaintiff propounded document requests to defendant apparently
designed to support its breach of contract claims, including, among other allegations, that
(1) defendant had repudiated its contractual obligation to provide plaintiff with security
escorts, and (2) had ordered “Proof of Principle” fuel shipments that allegedly did not
reflect the government’s actual fuel requirements. Specifically, plaintiff requested:
11. All documents, including but not limited to contract modifications,
notices, and correspondence, related to security for other contractors
awarded contracts under the Solicitation.
12. All documents related to notices issued to other contractors awarded
contracts under the Solicitation requesting contractors to conduct a Proof of
Principle.
Defendant “objected to these requests, principally on the grounds that they are
overly broad and unduly burdensome, and because they call for the production of
documents that are neither relevant nor reasonably calculated to lead to the discovery of
admissible information.” In an effort “to avoid burdening the Court with an unnecessary
discovery dispute,” however, defendant offered to “produce responsive documents
12
relating to other contractors performing under the contract originally awarded Securiforce
through Amendment 5 to the Solicitation.” Unsatisfied with defendant’s response, plaintiff
moved to compel the production of additional documents that it believed defendant should
have produced in response to plaintiff’s document requests. In a December 4, 2013
Order, the court held that “Plaintiff’s May 31, 2013 Motion to Compel Discovery and for
Payment of Expenses, July 23, 2012 Motion in Limine and for Partial Summary Judgment,
and November 8, 2013 Motion to Amend the Court’s October 30, 2013, Order are
DENIED at this time.” (capitalization and emphasis in original). The court ordered that the
parties work together to “pursue the discovery plan discussed at that conference in order
to attempt to resolve any discovery disputes.” The court indicated that it was deferring
plaintiff’s motions until it could hear the witnesses at trial, given the difficulty at the time
to determine relevancy and the need to more fully understand the facts surrounding the
termination for convenience and the termination for cause which formed the basis of
plaintiff’s complaint.
In its post-trial brief, plaintiff argues that “evidence presented at trial reinforces the
relevance of the documents sought by Securiforce and warrants the Court’s
reconsideration of Securiforce’s motion for costs.” According to plaintiff, although its
motion compelling certain document discovery was provisionally denied before trial, the
record developed at trial demonstrates that the motion should have been granted initially.
Plaintiff, however, did not argue that any additional evidence should have been introduced
into the trial record or that any such evidence would have changed the result of the trial.
Although plaintiff’s complaint was framed as a request for declaratory relief and to
void the terminations for the government’s convenience and for cause, plaintiff sought a
finding from this court that the terminations were breaches of plaintiff’s contract with DLA
Energy. In reviewing a breach of contract claim, the court shall look to the language of
the written agreement between the parties. See Bell/Heery v. United States, 739 F.3d
1324, 1331 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Sterling,
Winchester & Long, L.L.C. v. United States, 83 Fed. Cl. 179, 183 (2008), aff’d, 326 F.
App’x 568 (Fed. Cir. 2009). Where there is ambiguity in the language of a contract
evidence of conduct under other, similar contracts may be admissible to prove breach.
See Miller Elevator Co., Inc. v. United States, 30 Fed. Cl. 662, 689 (1994) (explaining that
the previous conduct between parties to an agreement can establish “a common basis of
understanding for interpreting their expressions and other conduct”). This court’s
predecessor held in Troise v. United States, 21 Ct. Cl. 48, 61 (1990), that a court may
consider as evidence prior contracts between parties involved in a contract dispute if the
prior contract and the current contract are sufficiently similar. Additionally, in certain
circumstances, this court may consider the course of dealing between parties to resolve
an ambiguous contract term. See Barron Bancshares, Inc. v. United States, 366 F.3d
1360, 1375 (Fed. Cir. 2004); see also Miller Elevator Co., Inc. v. United States, 30 Fed.
Cl. at 689. In the motion to compel, plaintiff argues that other contracts are relevant to its
breach of contract claims, however, plaintiff has not established that the contract between
Securiforce and DLA Energy was ambiguous.
Plaintiff has argued that its document discovery requests 11 and 12 were part of
its effort to prove that DLA Energy had breached its contract with Securiforce by
13
repudiating its obligation to provide security escorts and improperly ordering proof of
principle shipments. With regard to document request 11, which requested contract
documents related to government-provided security for other contractors, plaintiff points
to three different examples in the trial record to prove that the documents requested were
relevant and, thus, the motion to compel should have been granted. First, plaintiff argues
that “[t]estimony from various witnesses and trial exhibits established that other
contractors, including Ram and Jassim, refused to make fuel deliveries without
government-provided security.” As discussed further below, however, neither the conduct
of other contractors, nor the terms of other contracts between different contractors and
defendant are relevant when considering this plaintiff’s breach of contract claim. The trial
record, including the testimony of several witnesses, emphasized that the particular
contract between Securiforce and defendant governed plaintiff’s relationship with the
government and that the contract did not, initially, provide for security. The trial record
also did not establish the relevancy of other contractors’ agreements with the government
in relation to the contract specifications contained in Securiforce’s contract. As such, even
discussion at trial of other contractors’ conduct cannot establish that plaintiff’s document
production request sought relevant information.
Second, plaintiff points to Contracting Officer Shepherd’s trial testimony regarding
discussions about security that were conducted with other offerors prior to contract award.
Contracting Officer Shepherd explained at trial, however, that these discussions only
concerned the contracts for Department of Defense sites, and did not address contracts
issued to provide fuel to Department of State sites, such as plaintiff’s contract. Therefore,
plaintiff has failed to prove the relevance of discussions between the government and
other contractors with regard to plaintiff’s specific contract with the government. The fact
that different contractors in the same war zone were operating under different contractual
agreements with defendant does not change, or effect in any way, the terms of plaintiff’s
contract with the United States.
Third, plaintiff relies on the fact that, at trial, the court admitted into evidence, over
defendant’s relevancy objection, an e-mail discussing a contract between DLA Energy
and another contractor, Ram, which had been awarded under the same solicitation as
plaintiff’s contract. Plaintiff moved to admit the e-mail into evidence during its trial
examination of Kathryn Fantasia, in order, according to plaintiff, to demonstrate “what a
requirements contract required and what would be a breach.” In this regard, the court
allowed plaintiff latitude to offer the evidence for general definition purposes. Although the
court allowed this e-mail to be entered into evidence as an exhibit, plaintiff asked only a
few questions about the e-mail discussing the Ram contract and did not draw a
comparison between the Ram contract and plaintiff’s contract regarding government-
provided security. Moreover, in a bench trial, the court is in the position to sift through the
evidence presented and to consider only the information relevant to the disposition of a
case when arriving at and issuing a decision. In the March 21, 2016 opinion, the court did
not utilize or refer to the e-mail discussing the Ram contract. As plaintiff itself explained
at trial, the e-mail was admitted as a general example of a requirements contract, it was
not admitted to prove whether security was required under plaintiff’s contract with DLA
Energy. Indeed, the e-mail discussing the Ram contract could not have been used to
prove or interpret the terms of plaintiff’s contract with defendant.
14
Although plaintiff tries to rely upon these three occurrences to advance its
argument that the mere mention at trial of another contract or contractor connected to the
same solicitation as plaintiff’s contract necessarily should lead to the conclusion that all
of the contract documents related to security for other contractors awarded contracts
under the same solicitation as Securiforce’s contract are relevant to the above-captioned
case, the court issued its opinion without coming to a similar conclusion. The contract
documents requested by plaintiff were not relevant to plaintiff’s claim that DLA Energy
breached the contract with Securiforce by allegedly repudiating its obligation to provide
security escorts, and the instances at trial that plaintiff points to in support of its position
do not prove the relevancy of those contract documents.
Similarly, with regard to document request 12, which asked for contract documents
related to proof of principle orders placed with other contractors, plaintiff argues that
defendant’s “conduct with respect to requiring POP [proof of principle] deliveries from
other awardees under the same Solicitation is relevant to this matter.” Plaintiff points to
Colonel Musgrove’s trial testimony acknowledging that DLA Energy did not place any
proof of principle orders with any of the other contractors that were awarded a contract
under the same solicitation as Securiforce. Colonel Musgrove’s trial testimony regarding
proof of principle orders placed with other contractors was during Securiforce’s own
examination of Colonel Musgrove and came in response to the question: “Can you with
certainty identify a single order. . . to a vendor, other than Securiforce, that was a proof
of principle order?” Simply because plaintiff’s counsel asked whether other contractors
received proof of principle orders, however, does not establish that all “documents related
to notices issued to other contractors awarded contracts under the Solicitation requesting
contractors to conduct a Proof of Principle” are relevant to the above-captioned case.
Also, Colonel Musgrove’s testimony does not establish that defendant’s actions in relation
to other contractors operating under different contracts is relevant to plaintiff’s contract
with the government.
Plaintiff Securiforce moved to compel defendant to produce contract documents
pertaining to contracts to which it was not a party. Plaintiff’s requests were overly broad
and not likely to produce evidence relevant to interpreting plaintiff’s contract with the
government. Plaintiff was not a party, nor has it alleged it was a party, to any of the
contract documents requested in document requests 11 or 12. Plaintiff’s document
requests and submissions to the court indicate that plaintiff wished to receive contract
documents held by other contractors in order to draw a comparison between contract
performance under Securiforce’s contract and performance under contracts held by other
contractors issued under the same solicitation as Securiforce’s contract, at least in part,
to support plaintiff’s breach of contract allegations. Such comparisons, however, would
not have been helpful to plaintiff’s case because the terms of the contracts held by other
contractors and the performance obligations thereunder could not be imposed onto
plaintiff’s contract with DLA Energy. The terms and conditions between DLA Energy and
other contractors would not have served to aid in resolving the issues of whether
defendant was obligated to provide security escorts or permitted to place proof or principle
orders with plaintiff under the terms of the contract between Securiforce and DLA Energy.
In the above-captioned case, in order to succeed on its breach of contract claims
regarding security escorts and proof of principle orders, plaintiff would have had to
15
demonstrate that DLA Energy breached a duty on these issues arising out of the terms
of the particular contract between Securiforce and DLA Energy, which was the only
contract relevant to plaintiff’s claims. See Carlos Irr. & Drainage Dist. v. United States,
877 F.2d at 959.
As stated above, evidence of other contracts may be relevant in cases in which
the language in a contract is ambiguous. In the above-captioned case, plaintiff argues
that contract documents pertaining to different contracts held by different contractors are
relevant to proving plaintiff’s breach of contract allegations, however, plaintiff does not
appear to argue that the contract between Securiforce and DLA Energy was ambiguous,
such that extrinsic evidence, including these other contract documents, would be
appropriate as evidence. With regard to whether the government was required under the
contract to provide security, plaintiff argues that the contract unambiguously required the
government to provide armed security. Also, in its March 21, 2016 opinion in the above-
captioned case, the court did not find that plaintiff’s contract with DLA Energy was
ambiguous with regard to either security escorts or proof of principle orders. The court
acknowledged that, although “the contract prior to Mod 0002 did not explicitly provide for
security for Securiforce,” “[u]nder Mod 0002 to the contract, the government was required
to provide security escorts to each location until December 31, 2011.” Securiforce Int’l
Am., LLC v. United States, 125 Fed. Cl. at 795. Notwithstanding plaintiff’s argument that
DLA Energy breached the contract by repudiating its obligation to provide security, in its
previous opinion in the above-captioned case, the court determined that DLA Energy did
not repudiate its obligation under the contract to provide security. See id. The court
explained that, “given that Securiforce never even attempted to deliver fuel to one of the
DoS sites, the failure to provide security, as alleged by plaintiff, never actually occurred.”
Id. at 796. With regard to the proof of principle orders, the March 21, 2016 opinion of this
court explained that the trial “testimony in the above-captioned case seems to support
that the PoP orders were for actual requirements,” notwithstanding plaintiff’s argument
that the proof of principle orders did not reflect the government’s fuel requirements. Id.
As previously stated, RCFC 26(b)(1) defines the scope of discovery as “any
nonprivileged matter that is relevant to any party’s claim or defense.” RCFC 26(b)(1). This
court generally has afforded a liberal treatment to the rules of discovery, however, it has
recognized that discovery has “‘ultimate and necessary boundaries.’” See New Orleans
Reg’l Physician Hosp. Org., Inc. v. United States, 122 Fed. Cl. 807, 815, recons. denied,
123 Fed. Cl. 40 (2015) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Similar to
its May 31, 2013 motion to compel and for payment of expenses, plaintiff’s post-trial brief
continues to espouse the same, overly broad theory that “[d]ocuments related to security
for other contractors awarded contracts under the same Solicitation [as Securiforce] and
under the same terms and conditions are relevant to Securiforce’s claims,” and that “[t]he
government’s conduct with respect to requiring POP deliveries from other awardees
under the same Solicitation is relevant to this matter.” Plaintiff in the above-captioned
case has failed to explain, however, how the terms and conditions of other contracts, held
by different contractors, and applicable to different fuel delivery sites would be relevant to
Securiforce’s breach of contract claims. Moreover, Securiforce’s contract was terminated
for cause because plaintiff ultimately failed to provide timely delivery of fuel in accordance
with the terms of its contract.
16
Based on the above discussion, plaintiff’s May 13, 2013 motion to compel is
DENIED. Discovery in this case was protracted, contentious, and difficult. The
circumstances of discovery in this case, and the actions of all parties, including DLA
Energy, lead the court to conclude that both sides should bear the costs of their own
discovery. As is further discussed below, the difficulties during discovery in this case do
not warrant reward to either party.
II. Plaintiff’s October 31, 2014 Motion for Sanctions
In its motion on October 31, 2014, plaintiff moved for sanctions against defendant
based on defendant’s allegedly inadequate discovery responses and for producing an
allegedly unprepared RCFC 30(b)(6) deposition witness. Plaintiff’s motion for sanctions
revolves around its claim that the government relied on contractors other than Securiforce
to fulfill its fuel requirements in violation of the requirements contract between DLA Energy
and Securiforce. According to plaintiff, under the terms of the requirements contract, only
Securiforce could deliver diesel fuel and motor gasoline to the specific eight Department
of State sites in Iraq listed in Securiforce’s contract. During discovery, plaintiff sought
admissions from defendant that, during the life of Securiforce’s requirements contract, the
government had received fuel from sources other than Securiforce at the eight sites
designated in Securiforce’s requirements contract. Plaintiff alleges that during discovery
on this issue defendant incorrectly denied this allegation and gave inaccurate responses
for more than one year, and only produced corrected responses, admitting that some fuel
deliveries had occurred, after plaintiff had conducted a deposition of a RCFC 30(b)(6)
government witness. Plaintiff further alleges that, in its effort to prove that the government
improperly received fuel from other sources at Securiforce’s designated sites in Iraq,
plaintiff had to conduct an unnecessary deposition of an RCFC 30(b)(6) witness and that
the RCFC 30(b)(6) witness the government produced was unprepared. In its motion for
sanctions, plaintiff asserts that this court must award costs “under Rule 37(c)(1),(c)(2),
and (d)(3) for the government’s numerous inaccurate discovery responses necessitating
[a] 30(b)(6) deposition in the first instance; and (b) under Rule 37(b)(2)(C) for producing
an unprepared witness who could not testify to matters clearly within the government’s
knowledge.” Plaintiff seeks the award of Securiforce’s reasonable costs, including
attorney’s fees, in the amount of $110,833.55, in connection with the RCFC 30(b)(6)
deposition and the filing of its motion for sanctions in this regard.
In response to plaintiff’s motion for sanctions, defendant argues that “Securiforce
is not entitled to its fees under Rule 37(c)(2) when the Government’s responses to
Securiforce’s requests for admission were based on a reasonable understanding of the
only evidence the Government believed available.” According to defendant, “sanctions
are unwarranted when the Government had a reasonable belief that its answers
represented the best available evidence and amended its answers once it learned from
newly discovered information that its admissions did not tell the complete story.”
Additionally, defendant asserts that “[b]ecause the Government produced a qualified and
knowledgeable Rule 30(b)(6) witness who answered some, but admittedly not all, of
Securiforce’s questions, and because Securiforce has declined the Government’s
repeated offer of additional Rule 30(b)(6) witnesses, Securiforce’s motion should be
denied.”
17
a. Defendant’s Responses to Plaintiff’s Discovery Requests from June 2013 to
October 2014
As explained above, during discovery in the above-captioned case, plaintiff
propounded interrogatories, document requests, and requests for admissions to
defendant from March 2013 to May 2014 designed to support its claim that, during the life
of the contract, the government improperly received fuel from sources other than
Securiforce in violation of plaintiff’s requirements contract. In defendant’s discovery
responses beginning in June 2013, defendant stated that fuel had been delivered to some
of Securiforce’s designated sites (Basrah, Besamaya, Shield, Taji), but only after plaintiff
defaulted on the contract and, thus, the deliveries were not in violation of Securiforce’s
requirements contract. In July 2013, in response to plaintiff’s document requests on
March 12, 2013, defendant produced spreadsheets that purportedly captured all diesel
fuel and motor gasoline deliveries to the eight sites under the contract between
September 7, 2011 (the date of contract award) and March 12, 2013 (the date of plaintiff’s
first discovery request). The spreadsheets indicated that there were no deliveries of fuel
to Securiforce’s eight sites before October 24, 2011, the date on which Securiforce failed
to deliver fuel ordered by DLA Energy in accordance with the terms of the requirements
contract. Approximately one year after producing the spreadsheets, defendant confirmed
that the spreadsheets “capture[d] all fuel deliveries (including delivery of government-
owned fuel) to Securiforce’s sites from September 7, 2011, through the date of
Securiforce’s First Set of Document Production Requests (March 12, 2013).” Thereafter,
plaintiff conducted a RCFC 30(b)(6) deposition of Mr. Whitaker, the government
employee produced by defendant for the RCFC 30(b)(6) deposition. During his
deposition, Mr. Whitaker indicated that the government may have received some
government-owned fuel for Securiforce’s designated sites from sources other than
Securiforce prior to October 24, 2011, specifically, from the United States Army. Following
plaintiff’s deposition of the government’s RCFC 30(b)(6) witness in September 2014,
defendant initiated a follow on investigation and, as noted above, partially modified its
discovery responses.
In October 2014, defendant produced revised discovery responses which stated
that fuel apparently had been received at four of the sites designated in Securiforce’s
requirements contract, including Taji, Shield, Embassy Baghdad, and Basrah prior to
October 24, 2011. Defendant also admitted that fuel may have been delivered to Umm
Qasar, Besamaya, and Sather AB,
to the extent that DLA Energy-owned fuel from Kuwait was delivered to
various DLA Energy-owned stock points in Iraq. Some of that fuel was
subsequently transferred to the Army. The Army then redistributed that fuel
under a LOGCAP contract with KBR to military customers at various sites
in Iraq, including the sites under the Securiforce contract. . . . Furthermore,
during the transition, DLA Energy turned over various fuel stocks that it held
in Iraq to the Army in Iraq. The Army in turn had a policy to provide USF-I
owned fuel to the Department of State for USM-I at enduring locations.
18
Plaintiff now moves to sanction defendant for its inaccurate discovery responses
and recover its costs under RCFC 37(c)(1), (c)(2) and (d)(3) for conducting the RCFC
30(b)(6) deposition, which plaintiff characterizes as unnecessary, as well as to recover
the costs incurred in filing its motion for sanctions.
1. RCFC 37(c)(1)
RCFC 26(e)(1)(A) requires a party which has responded to an interrogatory to
“supplement or correct its. . . response. . . in a timely manner if the party learns that in
some material respect the. . . response is incomplete or incorrect, and if the additional
or corrective information has not otherwise been made known to the other parties during
the discovery process or in writing.” RCFC 26(e)(1)(A). Under RCFC 37(c)(1), if a party
fails to supplement its discovery responses in accordance with RCFC 26(e), including
the party’s previous responses to requests for admissions and interrogatories, the court
may order that party to pay the reasonable expenses, including attorney’s fees, caused
by the failure. See RCFC 37(c)(1) (when a party “fails to provide information or identify
a witness as required by RCFC 26(a) or (e) . . . the court, on motion and after giving an
opportunity to be heard . . . may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure.”); see also Deseret Mgmt. Corp. v. United States,
97 Fed. Cl. 272, 275 (2011) (explaining that under RCFC 37(c)(1), the court may order
payment of reasonable expenses in lieu of excluding evidence prior to a trial). A party’s
duty to supplement its responses under RCFC 26(e) applies to interrogatories, requests
for production, and requests for admission. See RCFC 26(e)(2); see also Zoltek Corp.
v. United States, 71 Fed. Cl. 160, 163 (2006). “The duty to supplement is a continuing
duty, and no additional interrogatories by the requesting party are required to obtain the
supplemental information—rather, the other party has an affirmative duty to amend a
prior response if it is materially incomplete or incorrect.” Zoltek Corp. v. United States,
71 Fed. Cl. at 164. In determining whether the government failed in its duty to amend a
discovery response pursuant to RCFC 26(e), the court must consider: “(1) whether there
was a prior response; (2) whether the response became materially incorrect or
incomplete; (3) whether the government knew that the response was incomplete; and
(4) whether the corrective information was otherwise made known to Plaintiff through
the discovery process or in writing.” Zoltek Corp. v. United States, 71 Fed. Cl. at 164.
“Monetary sanctions may be imposed against a governmental party for violating the duty
to supplement.” Id. at 171.
In the above-captioned case, it is undisputed that defendant produced discovery
responses in June 2013, October 2013, and June 2014 that were subsequently found
to be, in part, incomplete or inaccurate. Defendant admits that in September 2014, upon
realizing that its earlier discovery responses were not entirely accurate, it “immediately
informed counsel for Securiforce” of the new information defendant had obtained. The
parties do not dispute that, after conducting a follow on investigation in September 2014,
following the RCFC 30(b)(6) deposition of Mr. Whitaker, defendant amended its
discovery responses and produced corrected information to plaintiff in October 2014.
Plaintiff argues, therefore, that its deposition of Mr. Whitaker proved that
defendant’s prior discovery responses were inaccurate and seeks to recover the costs
19
incurred in conducting the deposition. Plaintiff argues that, pursuant to RCFC 37(c)(1),
“the government is responsible for Securiforce’s costs incurred in the 30(b)(6) exercise,
because the government had no good reason for its prolonged misrepresentations that
required Securiforce to incur this additional deposition expense.” Plaintiff argues that
defendant was essentially on notice of the Army’s possible involvement in deliveries to
Securiforce’s designated sites as early as Colonel Rush’s deposition in January 2014,
nine months before Mr. Whitaker’s deposition. At Colonel Rush’s deposition in January
2014, he mentioned that the United States Army was used to deliver fuel to Securiforce’s
sites. Colonel Rush stated:
As I'm sure we'll discuss later, they [Securiforce] weren't able to meet that
time line, so I still had customers that needed fuel. And as I recall, we had
to come up with other ways to get them fuel while waiting for SecuriForce
to be able to bring fuel into Iraq from Kuwait. And that proof of principle I
believe was bringing DOD-procured fuel that was already in Iraq, positioned
in an intermediate terminal, forward to another site by KBR, an Army
contractor.
...
KBR is Kellogg Brown & Root. It just means using -- the Army used Kellogg
Brown & Root to deliver fuel. We would deliver fuel, DOD procured fuel, we
own it, buy it in Kuwait, move it through Jassim by our transportation
contractor.
When asked whether it was his understanding that the Securiforce sites went without fuel
between September 7, 2011 and October 24, 2011, Mr. Whitaker stated at his deposition,
nine months later:
I don't -- I don't know that they didn't have any deliveries. I mean, if they
were operating -- and as I said before, I'm not sure if there were people -- if
those sites were occupied during that time. But I imagine if people were
there, they had to have generators running, they needed fuel. You know,
there was a bunch of big bases that we closed during that period. There
could have been leftover fuel that was used that the Army moved to those
destinations that was excess that -- when they were leaving. I'm just
speculating. I don't know.
Plaintiff argues that Mr. Whitaker’s deposition testimony corroborated other
evidence that the government’s discovery responses were inaccurate. In its submissions
to the court, defendant does not specifically address the nine month period between
Colonel Rush’s deposition in January 2014 and Mr. Whitaker’s deposition in September
2014, and argues that “it was Mr. Whitaker’s testimony that made clear the potential
existence of [the] informal support system [between the Army and the Department of
State] and that DLA’s records would not reflect any such fuel transfers.” The information
that defendant originally produced during discovery appears to have been based on
DLA’s records, as DLA was the party with which plaintiff entered into the contract and
20
with which plaintiff interacted during contract performance. Defendant argues that “the
Government’s denial that fuel was delivered to Securiforce’s contract sites prior to
October 25, 2011 was based on the only information available to it in response to a
reasonable inquiry into DLA Energy’s fuel delivery records.” Defendant argues also that
plaintiff “should have recognized that the Department of States’ [sic] presence at the
various sites Securiforce was contracted to supply was negligible at first and would
materialize only after the sites transitioned fully from military control to the Department
of State” in January 2012.
Notwithstanding plaintiff’s argument that it is entitled to recover costs pursuant to
RCFC 37(c)(1), the record in the above-captioned case indicates that defendant
promptly, after conducting a follow on investigation and learning that its prior responses
were not entirely accurate or complete, in accordance with RCFC 26(e), amended its
discovery responses. Once Mr. Whitaker suggested at his deposition that during the
military withdrawal from Iraq the Army had distributed excess government-owned fuel
from military base closures to remaining Department of State sites, defendant
investigated Mr. Whitaker’s statements. Defendant subsequently learned: “[A]lthough
DLA Energy was the primary supplier of fuel for the military and the Department of State
in Iraq, the Army or its contractor, Kellogg Brown & Root (KBR), would redistribute fuel
it purchased from DLA Energy to its forward operating bases, including to the military at
Securiforce sites.”
While defendant was able to learn this information from its investigation, it was
“unable to locate any records documenting fuel transfer from the Army to the Department
of State.” Thus, given the information gained from Mr. Whitaker’s deposition testimony
and defendant’s follow on investigation, it does not appear that defendant was
disingenuous when it previously responded to and denied plaintiff’s requests for
admission based on its earlier reasonable search of DLA Energy’s records in response
to plaintiff’s discovery requests.
Although plaintiff argues that defendant should have been on notice of the fuel
deliveries to Securiforce’s sites prior to October 24, 2011 based on the deposition
testimony of Colonel Rush in 2014, in his testimony, Colonel Rush described the
government’s efforts as occurring only after Securiforce indicated that it could not
comply with the delivery timeline of October 24, 2011, which was plaintiff’s first delivery
deadline. It is not clear that Colonel Rush was discussing the possibility of fuel transfers
prior to October 24, 2011, and his testimony was not definitive. In the excerpt of Colonel
Rush’s deposition that plaintiff submitted in support of its motion for sanctions, Colonel
Rush discussed how the government devised other ways to get fuel to Securiforce’s
sites after Securiforce indicated it would not be able to meet its October 24, 2011
delivery deadline. Colonel Rush specifically indicated that he was describing the
government’s delivery of fuel “while waiting for SecuriForce to be able to bring fuel into
Iraq from Kuwait” because Securiforce had indicated that it could not deliver fuel before
October 24, 2011: “[T]hey weren’t able to meet that time line, so I still had customers
that needed fuel.” In contrast, Mr. Whitaker’s deposition testimony specifically discussed
fuel delivery to Securiforce’s sites in September 2011, prior to October 24, 2011. Mr.
Whitaker was directly asked whether it was his “understanding that these sites went
21
without any fuel from September 7 through October 24?” Mr. Whitaker answered that it
was possible the sites were receiving government-owned fuel in September 2011. As
discussed previously, based on Mr. Whitaker’s response, defendant conducted a follow
on investigation concerning fuel deliveries before October 24, 2011. Plaintiff’s argument
that Colonel Rush’s deposition testimony, which discussed fuel delivery after October
24, 2011, should have triggered further investigation into deliveries to Securiforce’s
designated sites before October 24, 2011, as Mr. Whitaker’s deposition prompted, is not
sufficient to cause this court to impose sanctions on defendant. Discovery in this case
was protracted and adversarial, and the contract records were created during an
international conflict, dispersed, and stored in multiple locations, and, apparently, not
easily retrievable if available at all. The record demonstrates that defendant made a
good faith effort to comply with plaintiff’s discovery requests and further investigated Mr.
Whitaker’s statements promptly following his deposition in September 2014. Defendant
also promptly produced supplemental discovery responses approximately five weeks
later. Moreover, although defendant produced its supplemental discovery responses in
October 2014, plaintiff received the corrected responses at least four months before
trial, with time for plaintiff to conduct any follow up discovery, had it chosen to request
to do so.
Based on the record in the above-captioned case, defendant initially supplied
information based on a reasonable review of what was identified by the agency as the
available records. Defendant also met its obligation under RCFC 26(e) to supplement
or correct its discovery responses in a timely manner upon learning that its prior
responses were incomplete or inaccurate. Accordingly, plaintiff is not entitled to recover
costs under RCFC 37(c)(1).
2. RCFC 37(c)(2)
The court must impose sanctions against a party that fails to admit what is
requested in a discovery request for admissions if the party that initially propounded the
request for admissions later proves the matter to be true and no exceptions under RCFC
37(c)(2) apply. See RCFC 37(c)(2). These exceptions include: (1) the request was held
objectionable; (2) the admission sought was of no substantial importance; (3) the party
failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(4) there was other good reason for the failure to admit. See RCFC 37(c)(2)(A)-(D). The
party moving for sanctions may request “that the party who failed to admit pay the
reasonable expenses, including attorney’s fees,” incurred in proving the truth of the
previously denied matter. RCFC 37(c)(2); see also JZ Buckingham Investments LLC v.
United States, 77 Fed. Cl. 37, 46-47 (2007) (“If, at trial, the propounding party
subsequently succeeds in proving the matter set forth in the request for admission and
the court determines that the responding party was not justified in refusing to admit the
matter, the court may award monetary sanctions to the propounding party equivalent to
the cost of proving the matter at trial.”); Centex Corp v. United States, 71 Fed. Cl. 40, 53
(2006) (“Rule 37(c)(2) is thus directed at failures to respond properly to requests for
admission.”); Universal Life Church, Inc. v. United States, 14 Cl. Ct. 343, 348 (1988)
(explaining that RCFC 37(c)(2) “requires that the court award expenses for failure to admit
unless it makes the stipulated findings favorable to the non-movant”).
22
In considering the imposition of sanctions pursuant to RCFC 37(c)(2), the court
looks to whether the party against which sanctions are sought failed to make “full and
frank disclosures” that “resulted in expense, waste, and delay.” Universal Life Church,
Inc. v. United States, 14 Cl. Ct. at 349 (sanctioning party pursuant to the requirements of
RCFC 37(c)(2) after the party failed to make admissions that were later proved by
uncontroverted evidence on summary judgment). Although the United States Court of
Appeals for the Federal Circuit has explained that “[a]s a practical matter, it will often be
necessary to complete a proceeding before it can be said that a requester has ‘proved’
the truth of the matter for which an admission has been requested,” it is not clear that
sanctions under RCFC 37(c)(2) are appropriate only after a requesting party has proved
the truth of a matter at trial, as opposed to another type of proceeding. See Chemical
Eng’g Corp. v. Essef Indus., Inc., 795 F.2d 1565, 1574 (Fed. Cir. 1986). In Universal Life
Church, Inc. v. United States, another judge on this court imposed sanctions under RCFC
37(c)(2) after the matter was resolved on summary judgment because the sanctioned
party’s failure to make full disclosures resulted in “expense, waste, and delay.” Universal
Life Church, Inc. v. United States, 14 Cl. Ct. at 349.
In the above-captioned case, plaintiff argues that, under RCFC 37(c)(2), it is
entitled to recover its expenses and attorney’s fees incurred in preparing for and
conducting the RCFC 30(b)(6) deposition of Mr. Whitaker. According to plaintiff, RCFC
37(c)(2) “mandates that Securiforce be awarded its costs associated with the 30(b)(6)
deposition and its Motion for Sanctions” because “[t]he government has now admitted the
falsity of its prior responses by retracting them, and it has acknowledged the truth of
Securiforce’s RFAs [requests for admissions] by admitting them in substance.” Plaintiff
argues that Mr. Whitaker’s deposition testimony “undermined the government’s position
that no fuel deliveries had been made to Securiforce’s sites from Contract award to
October 24, 2011,” which “led the government to recant its earlier denials and admit that
it had made such fuel deliveries, as Securiforce had contended throughout” discovery.
Defendant argues that sanctions under RCFC 37(c)(2) are not warranted because
“Securiforce did not ‘prove’ through Mr. Whitaker’s deposition that the Government failed
to make an admission.” Defendant contends that, at the time of Mr. Whitaker’s deposition,
there was an absence “of any information available to the Government. . . that these sites
even received fuel before October 25, 2011.” According to defendant:
Mr. Whitaker’s deposition raised the possibility that the Army was a source
of fuel for the Department of State. Following the deposition, the
Government conducted a follow-on investigation and amended its
admissions to reflect that, although there was no supporting documentation,
it was likely the Army supplied the Department of State without the
involvement of DLA Energy.
(citations omitted). Defendant argues further that “the Government’s denial that fuel was
delivered to Securiforce’s contract sites prior to October 25, 2011 was based on the only
information available to it in response to a reasonable inquiry into DLA Energy’s fuel
delivery records.” Defendant explains that “DLA Energy maintained the Government’s
stock of fuel for Iraq and was solely responsible for the contracts for direct delivery of fuel
to Department of State locations in Iraq,” thus, “there were reasonable grounds to believe
23
that its denial would prove true at trial,” as it was based on the records maintained by DLA
Energy.
As discussed above, defendant supplemented its discovery responses in October
2014 in order to provide more accurate and more complete discovery responses after it
conducted a follow on investigation to the September 2014 RCFC 30(b)(6) deposition of
Mr. Whitaker. After conducting this follow on investigation, defendant admitted what it had
previously denied in its earlier discovery responses, that fuel not supplied by Securiforce
was delivered to at least four of the sites designated in Securiforce’s requirements
contract prior to October 24, 2011, including Taji, Shield, Embassy Baghdad, and Basrah,
albeit that fuel was “DLA Energy-owned fuel” and not, alternatively, privately sourced fuel.
With regard to Securiforce’s other sites, including Umm Qasar, Besamaya, and Sather
AB, defendant admitted that Army-controlled fuel may have been redistributed to those
sites,
to the extent that DLA Energy-owned fuel from Kuwait was delivered to
various DLA Energy-owned stock points in Iraq. Some of that fuel was
subsequently transferred to the Army. The Army then redistributed that fuel
under a LOGCAP contract with KBR to military customers at various sites
in Iraq, including the sites under the Securiforce contract. . . . Furthermore,
during the transition, DLA Energy turned over various fuel stocks that it held
in Iraq to the Army in Iraq. The Army in turn had a policy to provide USF-I
owned fuel to the Department of State for USM-I at enduring locations.
Plaintiff points to defendant’s October 2014 admissions and Mr. Whitaker’s
deposition testimony to assert that it, Securiforce, was the party that proved fuel deliveries
were made to Securiforce’s sites between the contract award date, September 7, 2011,
and October 24, 2011, notwithstanding defendant’s denials throughout discovery.
According to Securiforce, because plaintiff proved that such deliveries took place, it is
thereby entitled to recover the cost of proving the truth of such deliveries pursuant to
RCFC 37(c)(2). Plaintiff identifies the costs incurred in conducting the RCFC 30(b)(6)
deposition of Mr. Whitaker as the costs of proving that the deliveries occurred. According
to plaintiff, “the cost of the 30(b)(6) deposition qualifies under Rule 37(c)(2) as
Securiforce's ‘reasonable expenses, including attorney's fees,’” incurred in proving that
the government's responses were untrue.
Notwithstanding plaintiff’s argument, it is clear from the record in this case that the
RCFC 30(b)(6) deposition of Mr. Whitaker did not “prove” that Securiforce’s sites had
received fuel prior to October 24, 2011. As defendant asserts, it was not until defendant’s
further, self-initiated investigation following Mr. Whitaker’s deposition testimony that
information regarding fuel deliveries to Securiforce’s sites prior to October 24, 2011 was
discovered. Mr. Whitaker’s deposition, by itself, did not prove that fuel was delivered to
Securiforce’s sites between September 7, 2011 and October 24, 2011. The deposition
prompted defendant to conduct further investigations into the delivery of fuel to
Securiforce’s designated sites. That investigation led to an indication that the government
had delivered what appears to have been DLA Energy-owned fuel to some of
Securiforce’s sites and that the Army also may have redistributed government-owned fuel
24
to other Securiforce sites. It was defendant’s voluntary further investigation, albeit
prompted by Mr. Whitaker’s deposition testimony, that proved some Securiforce sites had
received government-owned fuel between the contract award date and October 24, 2011.
Although a party seeking sanctions may not always be required to show bad faith by the
other party, sanctions are punitive in nature and intended to reprove a party for engaging
in bad behavior during discovery. See Goodeagle v. United States, 124 Fed. Cl. at 46.
Although DLA’s conduct during discovery, including its discovery responses, in the above-
captioned case was not exemplary, the record indicates a Department of Justice
supervised and self-initiated investigation by the government into Mr. Whitaker’s
statements and the quick sharing of information with plaintiff upon learning new
information. This investigation prompted defendant to produce additional responses,
which, however, still did not demonstrate that DLA had contracted to purchase fuel from
other contractors in order to meet the requirements for which defendant had contracted
with plaintiff. With respect to the discovery responses, the record does not indicate a
willful intent to deceive or other egregious conduct worthy of sanctions.
Additionally, to the extent that plaintiff’s discovery requests asked for information
about the delivery of government-owned fuel to Securiforce’s sites in Iraq, those requests,
likely, would be irrelevant to plaintiff’s claim that the government breached its contract.
The requirements contract between plaintiff and DLA Energy included the FAR 52.216-
21 requirements term, which explains that “the Government shall order from the
Contractor all the supplies or services specified in the Schedule that are required to be
purchased by the Government activity or activities specified in the Schedule.” Because
the government presumably did not have to purchase fuel that was already owned by the
government, even if it was later delivered to Securiforce’s sites, the delivery of such
government-owned fuel would be insufficient to prove that defendant breached the
requirements contract it had entered into with Securiforce. Furthermore, this court’s
opinion on March 21, 2016, upheld defendant’s termination for cause based on plaintiff’s
inability to timely provide any fuel to defendant in accordance with the contract terms.
Notwithstanding plaintiff’s allegations, it was not plaintiff that proved fuel was
delivered to the sites identified in Securiforce’s requirements contract. Instead, it was the
result of defendant’s follow on investigation after Mr. Whitaker’s tentative testimony at his
deposition, which suggested to defendant that it should further review the issue due to
the responses provided to plaintiff. Mr. Whitaker stated:
I don't -- I don't know that they didn't have any deliveries. I mean, if they
were operating -- and as I said before, I'm not sure if there were people -- if
those sites were occupied during that time. But I imagine if people were
there, they had to have generators running, they needed fuel. You know,
there was a bunch of big bases that we closed during that period. There
could have been leftover fuel that was used that the Army moved to those
destinations that was excess that -- when they were leaving. I'm just
speculating. I don't know.
(emphasis added). Accordingly, because defendant’s Department of Justice counsel
promptly initiated a follow on inquiry after Mr. Whitaker’s deposition, and then promptly
25
supplemented its discovery responses, defendant met its discovery obligations. Based
on the record before the court, defendant’s conduct during discovery does not warrant
sanctions and plaintiff is not entitled to recover its expenses.
b. RCFC 30(b)(6) Deposition of Jack Whitaker
Plaintiff also moves for sanctions against defendant pursuant to RCFC 37(b)(2)(C)
on the basis that the government “produced a wholly unprepared witness to testify.”
Plaintiff seeks to recover its expenses and attorney’s fees incurred in preparing for and
conducting the 30(b)(6) deposition of Jack Whitaker because, according to plaintiff, Mr.
Whitaker effectively was a “No-show” witness. Plaintiff alleges that the government’s
RCFC 30(b)(6) witness was unprepared to answer specific questions about what plaintiff
identifies as the narrow list of topics that Securiforce propounded when it notified
defendant of its intent to conduct a RCFC 30(b)(6) deposition. Defendant argues that
plaintiff’s motion for sanctions should be denied because “the Government produced a
qualified and knowledgeable Rule 30(b)(6) witness who answered some, but admittedly
not all, of Securiforce’s questions.” According to defendant, in response to plaintiff’s
RCFC 30(b)(6) deposition notice,
the Government identified Jack Whitaker, DLA Energy inventory program
manager, as the witness most likely to have knowledge about the fuel
inventory process and any possible transfer of fuel to Department of State
sites during the transition to a commercial supply based fuel system from a
system based on delivery of Government-owned fuel.
Defendant argues that “Mr. Whitaker’s extensive involvement in DLA Energy’s fuel
inventory management for the Middle East made him the best witness available to the
Government at the time to explain how Department of State sites in Iraq received fuel
when Securiforce failed to provide any.” While defendant acknowledges that Mr. Whitaker
could not answer every question posed by Securiforce, defendant argues that
“Securiforce is not entitled to a single, all-knowing Rule 30(b)(6) witness.”
RCFC 30(b)(6) provides that, in a notice of deposition, “a party may name as the
deponent. . . a governmental agency. . . and must describe with reasonable particularity
the matters for examination.” RCFC 30(b)(6). “The named organization must then
designate one or more officers, directors, or managing agents. . . . The persons
designated must testify about information known or reasonably available to the
organization.” Id.; see also Dairyland Power Co-op v. United States, 79 Fed. Cl. at 714
(“RCFC 30(b)(6) requires that when a party seeking to depose a governmental agency
announces the subject matter of the proposed deposition, the agency must produce
someone familiar with that subject.”). To satisfy its obligations under RCFC 30(b)(6), a
government agency has an affirmative duty to make available individuals who will be able
to give complete, knowledgeable, and binding answers on behalf of the government. See
Dairyland Power Co-op v. United States, 79 Fed. Cl. at 714. When the deponent is a
government entity, “a deponent’s failure to thoroughly investigate available records to
identify an appropriate witness can be tantamount to failure to testify under RCFC 37(b).”
Dairyland Power Co-op v. United States, 79 Fed. Cl. at 715. “If an RCFC 30(b)(6)
26
deponent produces a witness who has insufficient knowledge concerning the areas of
inquiry, essentially defeating the purpose of the discovery process, then RCFC 37(b)(2)
allows courts to impose various sanctions.” Dairyland Power Co-op v. United States, 79
Fed. Cl. at 714-15; see also Goodeagle v. United States, 124 Fed. Cl. at 46 (plaintiff
sought sanctions after the government allegedly failed to produce a proper RCFC 30(b)(6)
witness). Pursuant to RCFC 37(b)(2)(A), if a witness designated under RCFC 30(b)(6)
“fails to obey an order to provide or permit discovery,” then the court must order “the
disobedient party, the attorney advising that party, or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” RCFC
37(b)(2)(C).
In the above-captioned case, plaintiff identified the following broad topics for the
RCFC 30(b)(6) deposition in an e-mail to defendant from plaintiff’s attorney, Robert
Wagman, dated July 15, 2014:
The information contained in the government’s response to interrogatory
No. 16.
Deliveries of diesel fuel and motor gasoline, including government-owned
fuel, to the sites under Securiforce’s Contract from the date of Contract
award until the date of Securiforce’s First Set of Document Requests.
The basis for government’s representations that no diesel fuel or motor
gasoline was delivered to Securiforce’s sites prior to October 24, 2011. (See
Responses to Request for Admissions Nos. 71, 72, 81, 82, 90, 91, 98, 99,
106, 107, 115, 116, 213, 215, 216, 217, 218, 219, 220)
The sources (i.e., country of origin) of diesel fuel and motor gasoline being
delivered to Securiforce’s sites.
Plaintiff alleges that Mr. Whitaker was not prepared for his RCFC 30(b)(6)
deposition. When asked to explain how he had prepared for the RCFC 30(b)(6)
deposition, Mr. Whitaker stated that he had seen the list of plaintiff’s RCFC 30(b)(6)
deposition topics only the day before his deposition, and that, in order to familiarize
himself with the topics, he looked at each one of the admissions and the spreadsheets
produced by defendant in discovery. Mr. Whitaker also testified that he had not thoroughly
reviewed the contract between Securiforce and DLA Energy before his deposition.
Plaintiff points to different statements made by Mr. Whitaker during his RCFC
30(b)(6) deposition to demonstrate that the “government’s designated witness, Mr.
Whitaker, had no firsthand knowledge concerning the specified topics and had
undertaken no investigation as to what was ‘reasonably known to the organization.’”
Specifically, Mr. Whitaker testified that he had no personal knowledge as to whether fuel
was delivered to any of Securiforce’s sites between September 7, 2011 and October 24,
2011, and that his knowledge regarding specific fuel deliveries was based on the
information contained in the spreadsheets that were produced to plaintiff in July 2013.
27
When asked about the process for ordering and delivering fuel in Iraq, however, Mr.
Whitaker articulated a developed understanding of this process and its nuances, including
how the process could be different based on the source of the fuel. Furthermore, Mr.
Whitaker was able to testify to the information contained in defendant’s response to
interrogatory 16, including the data systems used to compile the spreadsheets.
The transcript of Mr. Whitaker’s deposition demonstrates that he offered a
thorough knowledge of the spreadsheets prepared by DLA and previously turned over to
plaintiff. The spreadsheets purportedly captured the fuel deliveries to the Securiforce
Department of State sites in Iraq during the relevant time period according to defendant’s
information when the spreadsheets were prepared. Mr. Whitaker stated that he was
familiar with the various databases listed on the spreadsheets, including “DLA Energy’s
fuels enterprise server, DLA Energy’s defense fuel, automated management system, and
DLA Energy’s automated voucher examination and dispersing system” and was able to
explain the systems to plaintiff’s counsel when asked. The dialogue contained in the
deposition transcript indicates that Mr. Whitaker could speak intelligently about the
information contained in the spreadsheets. Mr. Whitaker answered many questions posed
by plaintiff’s counsel about specific, detailed information contained in the spreadsheets
based on his ability to decipher the spreadsheets. Specifically, Mr. Whitaker could read
the codes used in the spreadsheets to identify countries of origin, invoice numbers, billing
codes, delivery sites, delivery dates, funding codes, stock numbers, fuel quantities, and
fuel grades. Mr. Whitaker’s knowledgeable deposition testimony about the spreadsheets
and fuel deliveries in Iraq indicates that he was prepared to discuss a broad range of the
topics plaintiff included in the RCFC 30(b)(6) deposition notice based on the information
contained in DLA Energy’s records.
Plaintiff, however, argues that Mr. Whitaker had no personal knowledge of actual
deliveries to the Securiforce sites or of how the spreadsheets were prepared, and had
done nothing to verify the accuracy of the information contained in the spreadsheets. Mr.
Whitaker testified that, prior to his deposition, he had not spoken with any of the
individuals who prepared the spreadsheets containing the fuel delivery information, nor
had he spoken with anyone at the sites in Securiforce’s contract as to whether fuel was
received between September 7, 2011, the contract award date, and November 15, 2011,
the contract termination date. Although Mr. Whitaker had not prepared the spreadsheets
provided to plaintiff, he was thoroughly familiar with the information captured in the DLA
databases and reflected in the spreadsheets. The deposition transcript also demonstrates
that Mr. Whitaker believed the spreadsheets to be accurate based on his familiarity and
knowledge as to how the information in the spreadsheets was assembled. Moreover, he
was able to explain the information contained in the spreadsheets and define the various
data entries. In response to plaintiff’s counsel’s question pertaining to the accuracy of the
spreadsheets, Mr. Whitaker stated:
I reviewed them, I looked at them and I know how the process works. I know
what the origin is -- if you put parameters in and say give me a list of
deliveries from these origins, that this document captures the origins that
the fuel came from. So on that basis, I think they’re accurate.
28
In their briefs regarding plaintiff’s motion for sanctions, the parties submitted
different portions of Mr. Whitaker’s deposition transcript to support their opposing
positions. A review of these combined submissions of Mr. Whitaker’s deposition testimony
indicates that Mr. Whitaker was not, as plaintiff argues, effectively a “No-show” witness.
Given the breadth of the topics identified in Mr. Wagman’s e-mail noticing the deposition,
which, in the e-mail, Mr. Wagman explained was sent to “identify the appropriate 30(b)(6)
witness(es),” it is unlikely that there could have been just a single witness to cover all of
plaintiff’s identified topics. Mr. Whitaker’s deposition testimony was informed and helpful
to explain the spreadsheets. Moreover, plaintiff cites to Mr. Whitaker’s deposition
transcript, undermining plaintiff’s argument that Mr. Whitaker was a no show witness. To
try to support its breach of contract claims, plaintiff points to several of Mr. Whitaker’s
statements indicating that the Army could have moved its fuel from closed military bases
to Securiforce sites and that such fuel transfers may not have been captured on the
spreadsheets because there were possible internal sales and deliveries of government-
owned fuel.
Although plaintiff argues that Mr. Whitaker was not prepared to discuss all of the
topics that plaintiff identified prior to the RCFC 30(b)(6) deposition, the deposition
transcript indicates that Mr. Whitaker was prepared to discuss the fuel deliveries to
Securiforce’s sites based on the records kept by DLA Energy. At the time they were
prepared, defendant believed that the spreadsheets produced to plaintiff by the
government captured the information contained in DLA Energy’s various systems
regarding fuel deliveries in Iraq, and Mr. Whitaker was able to intelligently discuss, in
detail, the information included in the spreadsheets. While this court recognizes that Mr.
Whitaker could not answer all of the questions posed by plaintiff’s counsel, an RCFC
30(b)(6) witness is not required to know every single fact surrounding a matter, and Mr.
Whitaker’s deposition testimony was not so inadequate as to warrant sanctions. See
Dairyland Power Co-op v. United States, 79 Fed. Cl. at 715. It is clear from Mr. Whitaker’s
deposition testimony that, although he could not provide specific details for all of plaintiff’s
counsel’s questions, he testified about information reasonably known by the government,
based on DLA Energy’s records, and was responsive to a significant portion of plaintiff’s
identified RCFC 30(b)(6) topics. Because Mr. Whitaker testified knowledgably about the
DLA-prepared spreadsheets, and the information contained therein, his deposition
testimony as a RCFC 30(b)(6) witness was not such that he was, as alleged by plaintiff,
a “No-show” witness. Moreover, it would be hard to argue that only one witness could
have testified to DLA Energy headquarters’ records and whether onsite deliveries in the
conflict theater of Iraq actually occurred, as well as to possible fuel deliveries by the Army.
The government offered to provide additional RCFC 30(b)(6) witnesses, and identified
possible further witnesses, but plaintiff declined to depose any additional witnesses who
could speak to the onsite fuel deliveries in Iraq. Instead, plaintiff chose to file its motion
for sanctions and seek monetary compensation.
Plaintiff cites Dairyland Power Co-op v. United States to support its argument that
it should recover the costs incurred in conducting the RCFC 30(b)(6) deposition and in
litigating its motion for sanctions. In Dairyland Power Co-op, the plaintiff filed a motion for
sanctions after the government produced a RCFC 30(b)(6) witness who allegedly
provided insufficient deposition testimony about specific topics on which an earlier RCFC
29
30(b)(6) government witness had previously testified. See Dairyland Power Co-op v.
United States, 79 Fed. Cl. at 711. The court in Dairyland Power Co-op agreed with plaintiff
that the RCFC 30(b)(6) witness was unprepared to testify on information that was
certainly available to the government because of a prior RCFC 30(b)(6) witness’
testimony. Dairyland Power Co-op v. United States, 79 Fed. Cl. at 716. The Dairyland
Power Co-op court held, however, that “[w]ithout evidence of willful evasiveness” by the
RCFC 30(b)(6) witness it would not order the government to compensate Dairyland for
the costs of litigating its motion for sanctions. Dairyland Power Co-op v. United States, 79
Fed. Cl. at 716. Plaintiff in the above-captioned case draws an unpersuasive analogy
between the RCFC 30(b)(6) witness in Dairyland Power Co-op and Mr. Whitaker. In
Dairyland Power Co-op, the court held that the government’s RCFC 30(b)(6) witness
should have been aware of a previous, published decision of the court that discussed
deposition testimony of another RCFC 30(b)(6) government witness regarding the same
contract as the underlying case. See Dairyland Power Co-op v. United States, 79 Fed.
Cl. at 716. In the above-captioned case, plaintiff argues that Mr. Whitaker’s RCFC
30(b)(6) deposition testimony should be held inadequate because, allegedly, “someone
in the government knows the facts about deliveries to those [Securiforce’s] sites.”
Apparently, plaintiff would have had Mr. Whitaker find and question this unidentified
individual or have had the government produce a different witness who could have more
expansively testified to onsite fuel deliveries in Iraq, while also testifying as competently
as Mr. Whitaker did regarding the underlying details of the spreadsheets previously
provided to plaintiff. Given the facts of this case and the distant locations of the personnel
involved, as well as the dispersed records pertaining to fuel deliveries in Iraq, it is likely
that no one witness could have testified about all the information contained in the
spreadsheets produced by defendant in the same specific and knowledgeable way that
Mr. Whitaker was able to testify. Defendant does not deserve to be sanctioned for
producing Mr. Whitaker as the government’s RCFC 30(b)(6) witness, especially since
defendant offered to produce other, supplemental RCFC 30(b)(6) witnesses following Mr.
Whitaker’s deposition, which plaintiff declined.
CONCLUSION
For the foregoing reasons, plaintiff’s May 31, 2013 motion to compel and for
payment of expenses is DENIED. Plaintiff’s October 31, 2014 motion for sanctions also
is DENIED.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
30