Veterans for Common Sense et al v. Nicholson et al

Filing 62

Veterans for Common Sense et al v. Nicholson et al

Doc. 62

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PETER D. KEISLER Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL BENSING D.C. Bar No. 334268 STEVEN Y. BRESSLER D.C. Bar No. 482492 KYLE R. FREENY California Bar No. 247857 Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Defendants Hon. Gordon Mansfield, the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Hon. Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Peter D. Keisler, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) VETERANS UNITED FOR TRUTH, ) ) Plaintiffs, ) ) v. ) ) Hon. GORDON H. MANSFIELD, Acting ) Secretary of Veterans Affairs, et al., ) ) Defendants. ) ) ____________________________________ )

No. C 07-3758-SC

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR PROTECTIVE ORDER TO STAY DISCOVERY Date: December 14, 2007 Time: 10:00 a.m. Courtroom: 1

Introduction 24 On September 25, 2007 defendants filed an motion to dismiss all claims in this action. 25 On October 19, 2007, Plaintiffs propounded outsized discovery including 129 separate requests 26 for production of documents and, shortly thereafter, also noticed 47 depositions. Defendants 27 advised plaintiffs that they would oppose such overbroad discovery and intended to move for a 28
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protective order staying discovery pending a ruling on the motion to dismiss. Plaintiffs have two responses. First, plaintiffs now complain that defendants were unwilling to engage in 129 separate discussions about why plaintiffs' many requests would require review of massive amounts of agency records at a prohibitive cost. Second, plaintiffs ignore the fact that a dispositive motion not requiring factual development was pending and file even more discovery ­ another 62 requests for production making the total 191. In support of the instant motion to stay discovery defendants filed the declaration of Mr. Thomas Bowman, chief of staff to the Secretary of VA, who described the VA's effort to quickly provide the Court with a rough approximation of the cost in time, funds and disrupted programs VA would incur if it attempted to respond to plaintiffs' wide-ranging and numerous document requests. Along with their Opposition, plaintiffs now submit a declaration by Mr. Paul Sullivan, a former mid-level employee of the VA who is also a an officer with one of the plaintiff advocacy organizations. As shown below and in supporting rebuttal declarations of Mark Bologna and Charles DeSanno, plaintiffs' declarant does not fully understand the design, use, or interactions between VA data systems, nor the scope of the requests for production of documents propounded by his own organization. In light of the fact that plaintiffs acknowledge their discovery requests are broad and the burden on VA would be "significant," this Court should exercise its discretion to stay discovery until the motion to dismiss is resolved. If there is any aspect of the case left at that juncture, plaintiffs should be directed to propound reasonable discovery requests limited to whatever issues remain. ARGUMENT 1. A stay of discovery is appropriate pending a ruling on the motion to dismiss. Plaintiffs fail to refute the well-settled principle that, where no factual issues are presented in a Rule 12 motion, a district court will typically exercise its discretion to stay discovery for a short time to permit a ruling on a motion to dismiss. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987). This principal is not limited to motions to dismiss on jurisdictional grounds, as plaintiffs suggest, Opposition at 5, n.2, but extends to motions contending that the complaint is "deficient as a
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matter of law," the situation in Jarvis, id. The only Ninth Circuit precedent cited by plaintiffs, Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975), Opposition at 3, did not involved a motion to stay discovery, but rather a motion to block the deposition of a witness on the ground that his testimony would be unduly repetitive. Id. at 429. The district court decisions plaintiffs cite merely demonstrate that district courts sometimes exercise their discretion to allow discovery to proceed in certain situations, such as where the pending motion is to transfer, rather than dismiss, Kron Med. Corp. v. Groth, 119 F.R.D. 636, (M.D.N.C. 1988), or where the party seeking the stay "does not argue that responding to this request will present any particular difficulties," Howard v. Galesi, 107 F.R.D. 348, 350 (S.D.N.Y. 1985). The Court does not have to reach a decision on the merits of defendants' motion to dismiss in order to recognize that defendants' motion raises very serious questions about plaintiffs' claims, both as to the Court's jurisdiction as well as the legal sufficiency of plaintiffs' facial challenge to a decades-old statutory scheme providing an informal claims adjudication process for awarding veterans' benefits. In particular, defendants' motion to dismiss identifies the extensive line of authority finding that 38 U.S.C. § 511 prohibits district courts from exercising jurisdiction to entertain challenges to VA decisions affecting the payment of benefits and the provision of medical care. See Motion to Dismiss at 11, n. 8. In the case most similar to this action, i.e. a sweeping constitutional challenge to the operation of the VA claims system, Beamon v. Brown, 125 F.2d 965 (6th Cir. 1997), the Court dismissed the action based on section 511. 2. Responding to plaintiffs' discovery requests would require unjustifiable effort and expense. Defendants' motion stressed that a stay of discovery is particularly appropriate in this instance because the burden of responding to plaintiffs' extraordinarily broad requests for production of documents would be enormous and would directly and seriously impact the VA's ability to carry out its core functions. See Bowman Decl. ¶¶ 12-15. Plaintiffs do not seriously dispute that the overall burden on defendants will be substantial, as they concede that "discovery in this case will be significant," Opp. at 3:14. Indeed, this conclusion is inescapable upon even a cursory review of plaintiffs' 129 requests for production of documents (reinforced by a review of
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plaintiffs' additional requests, numbered 130-191). Because the burden of responding to plaintiffs' discovery was so great, defendants undertook a preliminary and limited investigation of the steps that VA would need to take to respond to plaintiffs' document requests, as well as the approximate cost in staff-hours and funds. The result of those inquiries are summarized in the Declaration of Thomas Bowman, the Chief of Staff.1 Plaintiffs have filed a declaration asserting that the document production process would not be quite as onerous as defendants anticipate. See Declaration of Paul Sullivan. As explained in the Declarations of VA officials Mark Bologna and Charles DeSanno, Mr. Sullivan does not fully understand the operation of the VA's data systems and has misstated the scope of plaintiffs' document requests. For example, Mr. Sullivan assumes that the "large segments" of the VA, offices such as the National Cemetery Administration, can be excluded from any search, thus significantly reducing the burden. Sullivan Decl. ¶ 6. However, Mr. DeSanno points out that the offices that Mr. Sullivan lists account for under one percent of the total number of VA e-mail boxes. Mr. Bologna explains why Mr. Sullivan is wrong when he suggests that the VA could respond to Request number 1 through a "simple query" of databases seeking veterans diagnosed with PTSD, since the request seeks documents on all "pending SCDDC claims based on PTSD or other mental health disorders," (emphasis added) which would require searches for

Plaintiffs do not fully comprehend defendants' concerns about protecting the privacy interests of veterans in the context of producing medical records and similar sensitive documents in discovery. Defendants agree with plaintiffs that such sensitive medical files should only be produced subject to a protective order that protects the confidentiality of this information to the greatest extent practicable. Defendants proposed such an order several months ago, but plaintiffs demanded additional terms and the parties have not reached agreement. Inevitably, however, many veterans will fear that, despite the parties' best efforts in crafting and following such a protective order, their confidential information might be disclosed improperly. Moreover, even if all the restrictions in a protective order are followed, veterans may not want their personal medical information shared with the plaintiff organizations or other persons involved in this litigation. The VA's concern is that any disclosure, even subject to a strong protective order might "undermine the Vet Center program's hard won trust with the combat veteran population and could cause serious barriers to care for new veterans needing readjustment counseling." Bowman Decl. ¶ 9 (emphasis added). This loss of trust will occur as soon as sensitive documents are produced (even if subject to a protective order) regardless of whether the case goes forward.
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information responsive to 152 additional diagnostic codes for "other mental disorders." Bologna Decl. ¶ 11. Additionally, VA's database will not include all information related to a veteran's diagnosis, requiring a search of paper files. Id. ¶ 9. Ultimately, the Court does not have to resolve the dispute about the precise steps that would be necessary to respond to plaintiffs' document requests and the cost in time and funds to the VA. The Bowman Declaration was presented to demonstrate why plaintiffs' document production requests will entail a significant burden on defendants, a point which is evident from the face of the requests themselves and which plaintiffs have now conceded.2 3. Defendants satisfied their obligation to confer with plaintiffs on the motion. Plaintiffs' entire discussion of the Rule 26 compliance issue is an unfortunate diversion. Plaintiffs have not, and cannot, suggest that they have incurred even the slightest prejudice from the scope of the parties' discussion before the motion for protective order was filed. For that reason alone the court should dismiss these complaints. In any event, plaintiffs also concede that defendants' counsel did meet and confer with plaintiffs' counsel on the central question of whether there should be any discovery at all before a ruling on the motion to dismiss. Ms. Moser states in her declaration that during more than one conversation during the week of November 5, 2007, government counsel "mentioned that the government proposed a motion to stay discovery pending the Court's ruling on the motion to dismiss," Moser Declaration, ¶ 2, and she admits that she informed government counsel that plaintiffs would oppose the motion, id. In addition, drafts of the Joint Initial Case Management Statement exchanged between the parties specifically stated that defendants would file a motion for a protective order. These communications were documented in the record in the government's Motion for Protective Order which contained a footnote confirming that the parties had conferred on the question of whether to stay discovery and that the plaintiffs opposed the

Defendants will address plaintiffs evidentiary and other objections to the Bowman Declaration in their response to plaintiffs' Motion to Strike the Bowman Declaration.
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motion. Motion for Protective Order at 2, n.1. It would have been pointless to undertake a detailed, request-by-request discussion of plaintiffs' document production requests because the precise scope and burden of the requests was irrelevant to defendants' basic position that there should be a stay of all discovery pending a ruling the motion to dismiss. Plaintiffs' complaints about the government allegedly not complying with its Rule 26(c) meet and confer obligation ignores this fundamental point. Should this case proceed beyond the motion to dismiss, defendants objection to plaintiffs' discovery requests on the ground of their excessive burden will remain. A party cannot propound outrageously overbroad discovery requests and then insist that the opposing party to respond individually to each request. See e.g. Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996) ("party resisting facially overbroad or unduly burdensome discovery need not provide specific, detailed suport"). Defendants are entitled to relief from the Court in the form of a protective order or otherwise, directing plaintiffs to narrow their discovery requests in a manner proportionate to the issues presented in any surviving claims. CONCLUSION For all of the foregoing reasons, the Court should grant defendants' Motion for Protective Order and stay discovery until after a ruling on defendants' Motion to Dismiss.

Dated December 4, 2007

Respectfully Submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director /s/ Daniel Bensing DANIEL BENSING D.C. Bar # 334268 STEVEN Y. BRESSLER D.C. Bar #482492 KYLE R. FREENY California Bar #247857 Attorneys U.S. Department of Justice, Civil Division

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P.O. Box 883 Washington, D.C. 20044 [phone] (telephone) Counsel for Defendants

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