1. The Plaintiffs made 19 document requests to the Defendants. The Defendants accepted some of the document requests but refused to produce documents for most of the document requests under the "deliberative process privilege." The Defendants also argued to restrict date ranges for search and production and insisted on a cutoff date of August 17, 2012 for document production, and that after that date, no documents will be produced.
The Defendants recently argued in this way in their motion for a protective order, in their reply to the Plaintiffs opposition to the Defendants' protective order motion and in oral argument on June 19, 2014.
Judge Sweeney regards the Defendants' recalcitrance to produce documents as requested as "offering too little." According to Judge Sweeney, by the Defendants "offering too little," the Plaintiffs will not have "the ability to make the best case they can to establish the Court’s jurisdiction."
So it can be safely assumed by Judge Sweeney's comments made during oral argument and her recent order that Judge Sweeney through a written protective order directed to the parties will do away with enough of the Defendants' proposed restrictions on the Plaintiffs document requests so that the Plaintiffs will "have access to information so that they have the ability" to establish the Court of Federal Claims jurisdiction over this case.
This does not mean that all of the documents requested by the plaintiffs will be produced for all the date ranges requested. Judge Sweeney has made comments that documents that are deemed not related to settling the jurisdictional issue will not be included. This also refers to Judge Sweeney's comment that the Plaintiffs are "looking for too much."
So rather than an all or nothing decision regarding documents, Judge Sweeney is taking a "surgical approach" to allow discovery to produce that which she deems sufficient for the Plaintiffs case while narrowing the discovery to include only the most relevant materials touching upon the Court's jurisdiction and the evidence needed to deny the Defendants' motion to dismiss the Plaintiffs complaint for lack of jurisdiction and ripeness.
Judge Sweeney's "surgical approach" to jurisdictional discovery will be found in Judge Sweeney's forthcoming written protective order. That order will contain what documents will be produced.
2. Unlike the previous discovery order that was somewhat open to interpretation and allowed the parties to work things out between them, a stipulated protective order will contain specific, detailed orders for jurisdictional discovery not open to much interpretation.
Genuinely missing documents cannot be remedied unless there is a forensic method to determine that documents said to be "missing" are actually withheld against the protective order requesting production.
3. Attorneys or participants failure to comply with the protective will result in being held in contempt of court (See RCFC Rule 4.1 and Rules Committee Notes 2002 Revision, Rule 37(b)(2)(A)(vii) and 28 U.S.C. § 2521(b), (c) (1994)).
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