Abalos v. United States ( 2023 )

In the United States Court of Federal Claims
Nos. 17-163C, 17-671C
(Filed: May 19, 2023)
)
GILBERT ABALOS, et al., )
)
Plaintiffs, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
ORDER DENYING MOTION TO COMPEL AND TO SHOW CAUSE
Plaintiffs, current and former border patrol agents employed by the United States
Customs and Border Protection (“CBP”), filed this Fair Labor Standards Act case against
Defendant, the United States, more than six years ago. Forward progress has been minimal.
Indeed, the discovery period for just a small group of model plaintiffs — selected from
only two out of twenty plaintiff subgroups — finally concluded on February 15, 2023.
With just two weeks left remaining in that initial discovery period, Plaintiffs filed a
motion to compel discovery, impose sanctions, and award attorneys’ fees.
Plaintiffs’ motion is the legal equivalent of launching boulders in a glass house.
The Court denies the motion and orders Plaintiffs’ counsel to show cause why they
should not pay the government’s attorneys’ fees and costs.
I. PROCEDURAL HISTORY
A. The Parties Agreed to Limit Discovery for this Initial Phase of the Case
to Selected Model Plaintiffs within Two CBP Sectors
On February 3, 2017, Plaintiffs, Gilbert Abalos, et al., filed a complaint against
Defendant, the United States, alleging that CBP failed to compensate current and former
border patrol agents for overtime work in accordance with the Fair Labor Standards Act
(FLSA), 29 U.S.C. §§ 201–219. ECF No. 1.
On June 6, 2017, the parties filed a joint preliminary status report (“JPSR”). ECF
No. 19. Therein, the parties included a “Proposed Discovery Plan” modeled after the one
in Abad v. United States, No. 14-444C, a similar FLSA collective action case. Id. at
7 (proposing a “structured, sector-by-sector approach to discovery similar to that
currently being used in Abad”). In particular, the parties proposed as follows:
[L]itigation would proceed sector-by-sector, moving serially
through each of the 20 CBP sectors. The parties would
cooperate on the selection of a stipulated number of
representative plaintiffs for each sector, conduct written and oral
discovery upon those plaintiffs, then assess whether any issues
can be narrowed or resolved through motion practice, trial, or
alternative dispute resolution.
Id. (emphasis added). The parties acknowledged that the government was in the process
of gathering information about each of the plaintiffs “so that the plaintiffs can be divided
among the 20 sectors and representative plaintiffs can be selected.” Id. 7–8 (emphasis added). 1
On September 5, 2017, the parties filed a joint status report (“JSR”), in which they
indicated that they “have discussed not only following the Abad discovery structure, but
also following Abad’s choice of sector locations for the first of the litigation: the Laredo
and Detroit sectors.” ECF No. 24 at 4 (noting that “many of the documents and most of
the deposition testimony adduced from supervisors and upper management in each
sector should be able to be used in both cases”).
On September 22, 2017, the parties filed a joint proposed discovery schedule. ECF
No. 27. In general, “the parties propose[d] an initial period of discovery in which the
parties exchange payroll data for all plaintiffs, followed by fact discovery limited to jointly
selected and randomly selected plaintiffs.” Id. at 4 (emphasis added). The parties reiterated
that discovery would “advance on a sector-by-sector basis,” proceeding “with discovery
in two sectors initially, Detroit and Laredo” — referred to as the “Group 1 Sectors.” Id.at 4–5. Even within the Group 1 Sectors, the parties made clear that discovery would be
limited: “The parties propose to focus on a limited set of model plaintiffs (discovery
plaintiffs) in three to four stations per sector.” Id. at 4. The term “discovery plaintiffs” is
employed throughout the filing. Id. at 4–7.
The joint proposed discovery schedule also addressed how the parties would
select discovery plaintiffs. Specifically, “[t]he parties . . . agreed to select 10 discovery
plaintiffs in the Detroit Sector who are or were located in the Detroit, Gibraltar, and
Marysville stations, with three discovery plaintiffs to be selected from each station, and
1 At the time, this case was pending before then-Chief Judge Braden.
2
the tenth discovery plaintiff to be selected randomly among the stations.” ECF No. 27 at
5. The parties “agreed to select 12 discovery plaintiffs in the Laredo sector.” Id. (noting
that the parties would “select[] six discovery plaintiffs from the North and South Laredo
stations, three discovery plaintiffs from the Hebbronville station, and three . . . from the
Zapata station”).
In addition, the parties’ joint proposed discovery schedule addressed “Deposition
Discovery of Supervisors.” ECF No. 27 at 5 (emphasis omitted). Two things are clear
from this filing. First, Plaintiffs had to “produce a list of supervisors . . . to be deposed.”
Id. Second, the government agreed “that this [list] could be very long (i.e., in excess of six
dozen).” Id. at 5–6. After Plaintiffs generated their list, “the parties agree[d] to work
together to identify a reasonable number of supervisors to depose.” Id. at 6. In terms of
Rule 30(b)(6) witnesses, Plaintiffs were limited to three per sector “for a total of six for the
two sectors addressed in this proposed schedule.” Id.The parties further agreed that “[o]nce fact discovery relating to discovery
plaintiffs in a sector is complete” — and following the “completion of expert discovery”
— “the parties will propose a briefing schedule for dispositive motions or, if appropriate,
notify the Court that the parties are ready to proceed to trial on the claims of the discovery
plaintiffs for the first group of sectors.” ECF No. 27 at 4 (emphasis added). The parties also
agreed that they would then “propose a discovery schedule for the second group of
sectors.” Id.On November 30, 2017, the Court issued a scheduling order consistent with the
parties’ discovery plan. ECF No. 34. 2 This order provided that the “[p]arties shall select
discovery plaintiffs for the Group 1 Sector plaintiffs (Detroit and Laredo)” by December 28,
2017. Id. at 1 (emphasis added). On the very next line, the order provided that fact
discovery for “Group 1 Sector plaintiffs” would close on October 31, 2018. Id. The phrase
“Group 1 Sector plaintiffs” clearly referred to the Group 1 discovery plaintiffs. Id. After
all, ordering the parties to perform fact discovery for all of the Group 1 plaintiffs would
have rendered the selection of discovery plaintiffs pointless.
Over the course of the next several years, the parties moved, and the Court agreed,
to amend the discovery schedule no less than seven times. ECF No. 79 (citing ECF Nos.
36, 38, 41, 45, 53, 56, 58). In at least one such joint motion, the parties referred to the
“designated test plaintiffs.” ECF No. 52 at 1. Then, on June 22, 2021, eight days before
the then-deadline for the completion of fact discovery, the parties filed a motion to vacate
the discovery schedule and stay the matter for settlement discussions. ECF No. 64. On
June 25, 2021, this matter was randomly reassigned to the undersigned judge. ECF No.
66. And on July 13, 2021, the Court granted the parties’ motion and stayed the case. A
2 By this point, the case had been transferred to Judge Griggsby.
3
year later, on July 13, 2022, the parties notified the Court that their settlement negotiations
were unsuccessful. ECF No. 74.
On July 27, 2022, the parties filed a joint status report reiterating that fact
discovery was “limited to jointly selected and randomly selected individual plaintiffs, plus a
certain amount of the discovery [from and concerning] plaintiffs’ supervisors.” ECF No.
76 at 2 (quoting ECF No. 24 at 4 (emphasis added) (alteration in original)). The parties
also proposed a new timeline “for completing fact discovery in Group 1,” suggesting that
fact discovery for the “Group 1 Sector plaintiffs” should close on March 30, 2023. Id. at 3.
The parties further noted that Plaintiffs had not yet “taken the depositions of any
supervisors or Rule 30(b)(6) depositions.” Id. at 4. Plaintiffs added a separate statement
explaining that they “intend[ed] to start limited nationwide discovery in preparation for
filing Plaintiffs’ motion for collective certification and for designation of representative
plaintiffs.” Id. at 5. The government objected to that plan, id., and the Court held a status
conference on August 2, 2022, ECF No. 78.
On August 4, 2022, the Court rejected Plaintiffs’ attempt to pursue nationwide
discovery, ordering that this case “shall continue to proceed in phases, as originally
proposed by the parties, with the first phase limited to Group 1.” ECF No. 79 at 3. The
Court emphasized that “the parties consistently agreed that this litigation would proceed sector-
by-sector,” and noted that the Court had repeatedly reaffirmed this agreement.
Id. (emphasis in original). In addition, the Court found that Plaintiffs had “offered no
persuasive justification for altering the parties’ prior agreement.” Id. In sum, there was
“no reason to depart from the parties’ earlier agreement, which was paused only due to
the joint request of the parties for exploring the possibility of settlement.” Id. The Court
ordered the parties to propose a new schedule, including a deadline for the “close of fact
discovery for Group 1 plaintiffs.” Id. Nowhere did the Court suggest it was open to, or
would approve, the wholesale alteration of the parties’ jointly proposed discovery plan
this Court previously adopted and upon which the operative discovery schedules have
always been based.
On August 17, 2022, pursuant to the Court’s order, the parties submitted a joint
status report. ECF No. 80 at 1. Later that same day, the Court issued a scheduling order
consistent with the parties’ proposal, setting the close of fact discovery for the “Group 1
plaintiffs” for February 15, 2023. ECF No. 81 at 1.
B. The Discovery Dispute
On February 1, 2023, Plaintiffs filed a motion to compel discovery, impose
monetary sanctions, and award attorneys’ fees pursuant to Rules 34 and 37 of the Rules
4
of the United States Court of Federal Claims (“RCFC”). ECF No. 86 (“Pl. Mot.”).3
Plaintiffs’ motion is limited to a single request for production of documents (“RFPD”).
Pl. Mot. at 10.4 That discovery request, RFPD 24, seeks “[a]ll emails sent by and/or to
Plaintiffs’ supervisors that evidence, refer, or relate to [administratively uncontrollable
overtime], scheduling, or hours worked.” Id. Plaintiffs’ primary complaint appears to be
that “Defendant has produced a small fraction of the requested emails from a small
sampling of Group 1 Plaintiffs.” Pl. Mot. at 12. Plaintiffs further assert that “Defendant
here has failed to produce all responsive documents and refuses to agree to do so.” Id.Although Plaintiffs quote at length the government’s objections and Plaintiffs’ responses
with respect to RFPD 24, Plaintiffs’ motion is all but devoid of any specificity regarding
the relief they seek from this Court. Id. As best the Court can tell, Plaintiffs’ central
criticism of the government’s production relates to email communications between CBP
“supervisors and management employees” who made and enforced the alleged unlawful
compensation decisions that “lie at the heart of the case.” Id. at 16. Plaintiffs also
reference unspecified “position descriptions, training guides, memoranda, and other
policy documents.” Id. at 18.
Defendant filed its response to Plaintiffs’ motion on February 14, 2023. ECF No.
87 (“Def. Resp.”). Plaintiffs filed their reply brief on February 21, 2023, ECF. No. 88 (“Pl.
Rep.”), and, on February 23, 2023, the government moved for leave to file a sur-reply,
which the Court granted. ECF No. 89 (“Def. Rep.”).
On May 3, 2023, the Court held oral argument on Plaintiffs’ motion. ECF No. 95;
ECF No. 97 (Transcript (“Tr.”)).
II. MOTIONS TO COMPEL DISCOVERY PURSUANT TO RCFC 37
The Rules of this Court permit parties to “move for an order compelling disclosure
or discovery” under a range of circumstances. RCFC 37(a)(1). Among other things, a
party can move to compel production of a required disclosure, RCFC 37(a)(3)(A), or to
compel production of a specific discovery response, like “an answer, designation,
production, or inspection,” RCFC 37(a)(3)(B). See, e.g., New Orleans Reg’l Physician Hosp.
Org., Inc. v. United States, 122 Fed. Cl. 807, 820 (2015) (compelling a party “to redo its
3 Because Plaintiffs filed a memorandum in support of their motion within the same ECF filing,
this order utilizes the ECF pagination electronically stamped in the header of the document.
Plaintiffs certified that they conferred with the government before seeking the Court’s
intervention, in accordance with RCFC 37(a)(1). Pl. Mot. at 2.
4Plaintiffs’ motion contains two exceedingly brief paragraphs regarding RFPDs 2–3 and 8–23, but
Plaintiffs do not pursue those items here, expressly indicating that they merely “include[d] the
above requests in this Motion to ensure production . . . and preserve their right to these
documents in the event Defendant fails to comply with the [discovery] deadline.” Pl. Mot. at 9–
10.
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previous searches” for responsive documents); 3rd Eye Surveillance, LLC v. United States,
158 Fed. Cl. 216, 232 (2022) (ordering that a party “clarify [its] answers” to a series of
RFPDs). Pursuant to RCFC 37(a)(5), “a prevailing party in a motion to compel may be
entitled to reasonable expenses.” CENTECH Grp., Inc. v. United States, 2021 WL 3027158,
at *4 (Fed. Cl. July 16, 2021).
This Court exercises broad discretion regarding “the scope and conduct of
discovery.” Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed. Cir. 1984); see also
Schism v. United States, 316 F.3d 1259, 1300 (Fed. Cir. 2002) (en banc) (“A trial court ‘has
wide discretion in setting the limits of discovery.’” (quoting Moore v. Armour Pharm. Co.,
927 F.2d 1194, 1197 (11th Cir. 1991))). That broad discretion extends to resolving motions
to compel. See New Orleans Reg’l Physician Hosp. Org., 122 Fed. Cl. at 815. When resolving
such motions, “‘court[s] must balance potentially conflicting goals’ with the
understanding that ‘[m]utual knowledge of all the relevant facts gathered by both parties
is essential to proper litigation.’” 3rd Eye Surveillance, 158 Fed. Cl. at 223 (second
alteration in original) (first quoting Petro-Hunt, LLC v. United States, 114 Fed. Cl. 143, 144
(2013); and then quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). “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)).
III. PLAINTIFFS’ MOTION IS DENIED
The government broadly opposes Plaintiffs’ motion, arguing that it proceeds from
an erroneous premise about the scope of discovery to which the parties agreed and that
the Court adopted in this case:
Due to the vast size and scope of the case, the parties agreed
to first conduct discovery on two of CBP’s 20 sectors, as part
of what the parties have colloquially referred to as their
sector-by-sector litigation plan. From the time the parties
adopted this plan and continuing through the Court’s most
recent discovery order, the sector-by-sector plan has been
limited in relevant part to discovery on a sampling of test
plaintiffs within this first discovery group. At present, the
parties are attempting to close discovery as to this first phase,
which involves 21 test plaintiffs from among 197 plaintiffs
employed within these first two sectors. The discovery
dispute that plaintiffs now raise centers on their insistence
that they are entitled to a broad array of emails covering four
years from about 500 different individuals that work within
these sectors.
6
Def. Resp. at 4.
Plaintiffs, in reply, all but accuse the government of lying:
Since the inception of discovery in this case, the plan has been
to proceed sector by sector. Now, for the very first time,
Defendant, the United States, holds out that it was always the
Parties’ agreement to conduct discovery for only a test set of
plaintiffs who represent about ten percent of the Group 1
discovery population. As evidenced by Defendant’s own
actions, this last-minute attempt to reframe the scope of
pending discovery is at best disingenuous, and is, simply, not
the course of action the Court endorsed.
Pl. Rep. at 1 (emphasis added).
Essentially, Plaintiffs argue that the Court’s August 4, 2022, and August 17, 2022,
orders — in using the phrase “Group 1 plaintiffs” — undid the parties’ discovery
agreement, reversed course on the initial scheduling order, and extended discovery, sub
silentio, to all 196 Group 1 plaintiffs. Pl. Mot. at 1 (referencing ECF Nos. 79, 81). Thus,
according to Plaintiffs, the government must produce emails for all 196 Group 1 plaintiffs
and their supervisors. Id. Plaintiffs contend that the government’s interpretation of
RFPD 24 — that the government need only produce documents concerning the 21
discovery plaintiffs — is “in clear contravention” of the Court’s orders. Id.Having now reviewed all (or nearly all) of the joint status reports and scheduling
orders in this case, the Court is struck by the sheer audacity of Plaintiffs’ argument. The
record is crystal clear that the government’s view of the scope of discovery is correct. Indeed,
even Plaintiffs concede that the “early discovery plan . . . called for initial discovery to be
completed” using only the 21 agreed-upon discovery plaintiffs. Pl. Mot. at 3 (emphasis
added). Although the premise of Plaintiffs’ pending motion is that the initial discovery
plan has been vacated, “[Plaintiffs] provide no explanation as to why the agreement no
longer governs, nor do they claim that the underlying calculus for that agreement has
changed.” Def. Resp. at 11. To make matters worse, Plaintiffs’ counsel of record
acknowledges that “[t]his discovery plan was finalized on September 22, 2017[,] in a joint
status report.” Pl. Mot., Ex. 1, ¶ 8 (Decl. of Danielle L. Perry) (emphasis added).
The record does not give Plaintiffs any wiggle room. Rather, the parties consistently
and repeatedly agreed that fact discovery would be limited to a subset of model plaintiffs. See, e.g.,
ECF Nos. 19, 27, 34, 76. Most critically, the parties’ finalized discovery plan explained
that fact discovery would “focus on a limited set of model plaintiffs (discovery plaintiffs) in
three to four stations per sector.” ECF No. 27 at 4. The parties made this choice for the
prudent reason that performing fact discovery for more than 1,800 plaintiffs would be a
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“potentially unwieldy task” — an understatement to say the least. Def. Mot. at 3, 11
(citing ECF No. 24 at 3–4). Accordingly, in the context of the discovery plan in this case,
the phrases “Group 1 plaintiffs” and “Group 1 Sector plaintiffs” have always referred only
to the 21 discovery plaintiffs. ECF Nos. 34, 76, 79, 80, 81. There is no evidence — nor would
it be reasonable to believe — that the government agreed to produce emails for 175
additional plaintiffs, not to mention all of their supervisors, in just six months. Nor, for
that matter, did the Court order the government to perform such a herculean task. ECF
No. 81 at 1. If Plaintiffs wanted to change that aspect of the joint discovery plan, Plaintiffs
could have filed a motion to do so, just as they did when they sought to alter the plan’s
sector-by-sector approach.
If the proper, limited discovery applicable in this stage of this case were not
obvious from the parties’ joint discovery plan, it should have been obvious from this
Court’s August 4, 2022, order. ECF No. 79. There, the Court was adamant that discovery
would proceed according to the parties’ original discovery plan, ordering as follows:
“[T]he Court sees no reason to depart from the parties’ earlier agreement, which was
paused only due to the joint request of the parties for the purpose of exploring the
possibility of settlement. This case shall continue to proceed in phases, as originally
proposed by the parties[.]” Id. at 3. Plaintiffs point to the Court’s having ordered that
discovery would continue “sector-by-sector,” Pl. Rep. at 3-4, but no one could reasonably
conclude that the Court somehow vacated the other limitations in the parties’ joint
discovery plan that this Court previously adopted. ECF No. 79 at 3. The point of the
Court’s references to “sector-by-sector” discovery and “Group 1 plaintiffs,” was to reject
Plaintiffs’ request that discovery “should instead be expanded to cover all the CBP sectors
at issue” — the whole context of that order. Id. at 2. Again, if Plaintiffs wanted relief
from the parties’ joint discovery agreement this Court adopted, Plaintiffs knew how to
file such a motion.
Accordingly, Plaintiffs’ motion is DENIED. To the extent Plaintiffs complain
about documents related to the model discovery plaintiffs and/or their supervisors, only
one issue remains, as discussed infra.
Likewise, Plaintiffs’ request for monetary sanctions and attorneys’ fees is
DENIED. Moreover, after further review of Plaintiffs’ briefs and the previous filings and
orders in this case, both Plaintiffs’ counsel of record and Mr. Alan Lescht are ordered to
SHOW CAUSE why, pursuant to RCFC 37, they should not pay the government’s
attorneys’ fees and costs for time spent opposing Plaintiffs’ motion. 5 Plaintiffs’ counsel
5 The Court notes that both Ms. Perry, who is counsel of record, and Mr. Lescht signed Plaintiffs’
filings at issue, designating themselves as “Counsel for Plaintiffs, Gilbert Abalos, et al.” See Pl.
Mot. at 21; Pl. Rep. at 10–11. Going forward, however, Mr. Lescht “must be designated ‘of
counsel’” as “[a] party may have only one attorney of record in a case at any one time[.]” RCFC
83.1(c)(1) (emphasis added); see also RCFC 83.1(c)(2) (“All filings must be signed in the attorney
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shall with specificity — i.e., using quoted language — point the Court to the precise factual
bases for Plaintiffs’ assertions that: (1) it was “[not] always the Parties’ agreement to
conduct discovery for only a test set of plaintiffs who represent about ten percent of the
Group 1 discovery population,” Pl. Rep. at 1; (2) “Plaintiffs’ motion seeks nothing
beyond what the Parties have agreed [to] all along[,]” id. at 3 (asserting that it was “not
so” that “the Parties’ ‘longstanding’ agreement was to proceed on a piece-of-sector-by-
piece-of-sector basis”); and (3) “[t]he Parties and the Court crafted a big discovery
plan . . . [that was] to proceed sector by sector, starting with discovery for the 197 plaintiffs
in Group 1, who worked in the Detroit and Laredo sectors[,]” Pl. Rep. at 10 (emphasis
added). Finally, although it appears that the government’s current counsel of record may
have been unfamiliar with the parties’ agreement regarding the scope of discovery, see
Tr. at 36:1–14, Plaintiffs’ counsel shall further address whether Plaintiffs’ motion and
reply brief are consistent with their duty of candor to this Court.
IV. THE PARTIES MUST MEET AND CONFER REGARDING SUPERVISORS
During oral argument, Plaintiffs’ counsel agreed that the only outstanding issue is
the number of Group 1 supervisors subject to discovery (for which the government owes
Plaintiffs certain documents). Tr. at 16:5–9. In that regard, Plaintiffs seek emails from all
Group 1 supervisors. Tr. at 14:23–25, 15:10–11. Plaintiffs’ counsel estimated that this
cohort consists of approximately 200 government employees, Tr. at 16:25, while
Defendant’s counsel estimated 350 such employees, Tr. at 17:16. See Pl. Mot., Ex. 2 at 11–
19 (listing approximately 350 Group 1 supervisors). Either way, this request far exceeds
the needs of this case.
Defendant, on the other hand, concedes that it has only “produce[d] emails from
10 [CBP] supervisors from Detroit and Laredo,” Def. Resp. at 14 n.4. Defendant contends
that its decision to limit production to 10 supervisors is “consistent with [its] obligations
under the parties’ discovery agreement.” Def. Rep. at 2.
The problem for the government is that the parties apparently never agreed to a
definitive number of supervisors. The parties’ discovery plan speaks to this issue, but
only in the most general terms and, even then, only in the context of depositions:
Deposition Discovery of Supervisors. Based upon experience
in other cases, discovery from the discovery plaintiffs will
produce a list of supervisors who will need to be deposed.
The length of this list will depend heavily upon the ability of
the deposition plaintiffs to precisely identify any supervisors
of record’s name.”); ECF No. 70 (order striking Plaintiffs’ notice of appearance). Given that
Ms. Perry and Mr. Lescht did not comply with RCFC 83.1, the Court finds it appropriate for both
counsels to respond to this show cause order.
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who might have information pertaining to the allegations in
the complaint, and defendant’s experience in other related
cases indicates that this list could be very long (i.e., in excess
of six dozen). Once the list is compiled, the parties agree to
work together to identify a reasonable number of supervisors
to depose.
ECF No. 27 at 5–6. Similarly, an earlier JSR refers to “fact discovery limited to jointly
selected and randomly selected individual plaintiffs, plus a certain amount of the discovery
plaintiffs’ supervisors.” ECF No. 24 at 4 (emphasis added).
The Court concludes that a “certain amount of the discovery plaintiffs’
supervisors” clearly means less than the entire universe of supervisors. At the same time,
considering the size of that universe, limiting discovery to only 10 supervisors is
insufficient, especially because that represents less than half the number of discovery
plaintiffs.
Accordingly, the parties shall meet and confer to decide on a reasonable number
of supervisors for whom the government shall produce documents. In having those
discussions, Plaintiffs should keep in mind that the discovery plan at least puts some
emphasis “upon the ability of the deposition plaintiffs to precisely identify any
supervisors who might have information pertaining to the allegations in the complaint.”
ECF No. 27 at 5–6. In addition, the Court is sympathetic to the fact that the government
tried to engage Plaintiffs’ counsel regarding an agreed-upon list of supervisors, but had
limited success in doing so. Tr. at 20:22–25, 21:1–3; Pl. Mot., Ex. 2 at 4–5.
On the other hand, the government should keep in mind that the Court is
unimpressed — and, for now, unmoved by — the government’s description of the
limitations and difficulties the Department of Justice and the CBP face in terms of their
collective e-discovery capabilities. The year is 2023, not 2003. See CCA Recordings 2255
Litig. v. United States, 2020 WL 4284222, at *8 (D. Kan. July 27, 2020) (commenting about
a government e-discovery estimate that “an effective competitive bidding process with
vendors in what the court knows is a very robust ESI marketplace might bring the price
tag down”). The Court hopes the parties can avoid a trip down the e-discovery rabbit
hole. See RCFC 53; Cannata v. Wyndham Worldwide Corp., 2012 WL 528224, at *4 (D. Nev.
Feb. 17, 2012) (“This court finds that based on the unsuccessful efforts of the parties to
work together with regard to the production of [electronically stored information],
appointing a Special Master to oversee this process is appropriate.”); Guy v. Absopure
Water Co., 2021 WL 5511722, at *2 (E.D. Mich. July 13, 2021) (“If the parties are unable to
develop a proposed ESI protocol together, the Court will be inclined to appoint a special
master — paid for by the parties — to supervise ESI matters.”).
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In the meantime, the Court DENIES, without prejudice, Plaintiffs’ motion to
compel regarding supervisors, as that issue is not yet ripe for resolution. Depending on
the outcome of the parties’ discussions, Plaintiffs may seek leave to refile their motion
with respect to this issue only.
V. CONCLUSION
On or before June 18, 2023, Plaintiffs’ counsel who signed the filings at issue shall
file their response to the show cause order, supra. 6 That response brief shall be in 12 point,
Times New Roman font, double-spaced; it shall not exceed 10 pages and shall not contain
footnotes.
Also, on or before June 18, 2023, the parties shall file a joint status report regarding
whether they have reached a compromise on the number of supervisors subject to
document discovery at this stage of the case. If the parties reach an agreement, the Court
will reopen fact discovery for the limited purpose of completing document production
for those supervisors. The parties shall address the parameters of that discovery, and an
associated timetable, in their joint status report. If the parties are unable to reach an
agreement, the Court will hold further proceedings, which may include permitting
Plaintiffs to renew their motion to compel.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
6 If Ms. Perry and Mr. Lescht seek to file separate responses, they may do so.
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