FOX LOGISTICS AND CONSTRUCTION COMPANY v. USA

Filing 52

UNREPORTED ORDER denying 46 Motion to Compel. Signed by Judge Thomas C. Wheeler. (nc) Service on parties made.

In the United States Court of Federal Claims
No. 18-1395C
(Filed: September 4, 2020)
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FOX LOGISTICS AND CONSTRUCTION *
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COMPANY,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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OPINION AND ORDER
WHEELER, Judge.
In this case, plaintiff Fox Logistics and Construction Co. (“Fox”) alleges that it was
a third-party beneficiary of a contract between Lakeshore Engineering Services, Inc.
(“Lakeshore”) and the Department of the Air Force. In the alternative, Fox claims that it
had an implied-in-fact contract with the Air Force. In either event, Fox alleges that the Air
Force breached its duty of good faith and fair dealing.
Fox’s claims are related to a construction contract between the Government and
Lakeshore for the construction of Shindand Air Base in Afghanistan. Fox was one of
Lakeshore’s subcontractors on the project, and alleges that it is owed approximately $11.7
million in damages for unpaid work and other costs associated with the construction of the
base.
In a previous order, the Court stayed consideration of the Government’s motion to
dismiss this case for lack of subject-matter jurisdiction pending the completion of limited
jurisdictional discovery. Now before the Court is Fox’s motion to compel production of
documents. For the reasons that are discussed below, Fox’s motion is DENIED.

Background
The full background of this case is available in the Court’s previous opinion staying
consideration of the Government’s motion to dismiss, which was reported at Fox Logistics
& Constr. Co. v. United States, 145 Fed. Cl. 236 (2019). As relevant to this opinion, the
facts are as follows.
Fox filed its complaint on September 13, 2018, and the Government filed a motion
to dismiss for lack of subject-matter jurisdiction on April 15, 2019. Dkt. 1; Dkt. 15. On
September 25, 2019, the Court stayed consideration of the Government’s motion pending
the completion of limited jurisdictional discovery. Fox Logistics, 145 Fed. Cl. at 243. The
parties were supposed to complete written discovery by March 24, 2020. Dkt. 39.
Following the close of written discovery, the parties had multiple discovery disputes. See
Dkt. 50-1 at 2–3. The parties attempted to resolve these disputes on their own, but were
unable to do so. See id.; see also Dkt. 49.
The present dispute arose over Fox’s attempts to obtain certain documents that the
Government claims are privileged. Dkt. 46 at 1. Fox filed a motion to compel production
of documents on August 5, 2020. Id. The Government filed its response to Fox’s motion
on August 17, 2020, and Fox filed its reply on August 24, 2020. Dkt. 50; Dkt. 51. Fox’s
motion to compel is now fully briefed and ripe for decision.
Discussion
I.

Standard of Review

Motions to compel discovery “are left to the sound discretion of the court.”
Christine Asia Co., Ltd. v. Alibaba Group Holding Ltd., 372 F.R.D. 52, 54 (S.D.N.Y.
2018); see Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1049 (Fed. Cir.
2012) (“We review a trial court’s denial of a request for discovery for abuse of
discretion.”). A court may deny a motion to compel discovery as untimely if it was filed
after the discovery deadline has already passed. See, e.g., Pittman v. Experian Info. Sols.,
Inc., 901 F.3d 619, 643 (2018); Williams v. Las Vegas Metro. Police Dep’t, No. 2:13–cv–
01340–GMN–NJK, 2015 WL 3489553, at *1 (D. Nev. June 3, 2015) (“Untimeliness is
sufficient ground, standing alone, to deny a discovery motion.”).
When deciding whether to review privileged documents in camera to determine if
a claimed privilege applies, the Court must first consider whether the party opposing the
claim of privilege “present[s] evidence to support a reasonable belief” that the privilege
does not apply. United States v. Zolin, 491 U.S. 554, 574–75 (1989). Like most discovery
disputes, the decision to engage in in camera review is left to “the sound discretion of the
[trial] court,” and is based on “the facts and circumstances of the particular case.” Id. at
572; see also In re DW Wallcovering, Inc., No. 453, 1996 WL 17457, at *3 (Fed. Cir. Jan.
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3, 1996) (“[T]he district court’s use of an in camera proceeding . . . does not appear
improper in the circumstances of this case.”).
II.

Waiver

Fox waived its right to object to the scope of production by waiting more than four
months after the close of written discovery to file a motion to compel. Courts routinely
deny motions to compel discovery as untimely when they are filed after the discovery
deadline has passed. See, e.g., Pittman, 901 F.3d at 643 (denying a motion because it was
filed four months after the discovery deadline had passed); Material Supply Intern. v.
Sunmatch Indus. Co., 146 F.3d 983, 992 (D.C. Cir. 1998) (five-month delay); Davidson v.
Citizens Gas & Coke Utility, 238 F.R.D. 234, 235 (S.D. Ind. 2006) (fourteen-month delay);
Willis v. New World Van Lines, Inc., 123 F. Supp. 2d 380, 401 (E.D. Mich. 2000) (fourmonth delay). Courts are especially likely to deny a motion to compel if the party seeking
to compel production sat on its rights. See Pittman, 901 F.3d at 643; Wells v. Sears
Roebuck & Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001).
In this case, written discovery closed on March 24, 2020, but Fox did not file its
motion to compel until August 5, 2020. Fox claims that this delay occurred because it “was
patiently waiting for the Government to finalize its production.” Dkt. 46 at 6. Because it
was the Government that caused any delay, Fox says, it has not waived its objections to the
scope of the Government’s production. Id. However, Fox’s contention that the
Government is responsible for the delay is unsupported by the record. The parties have
provided the Court with communications from Government counsel which claim that Fox
is responsible for the delay. Dkt. 46-8; Dkt. 50-1. In a July 23, 2020 letter to Fox’s attorney
Hal Emalfarb, Government attorney Erin K. Murdock-Park explained that Fox promised
to specifically identify the documents it had questions about. Dkt. 50-1 at 3. However,
according to the letter, Fox failed to provide the Government with this information, crucial
to resolving any dispute over the scope of production, until July 17, 2020, more than two
months after it had promised to do so and four months after the close of written discovery.
See id. Fox does not dispute any of these facts. See Dkt. 46 at 6. It is therefore clear that
Fox, not the Government, is responsible for the delay.
Fox points to the Court’s June 12, 2020 scheduling order, which granted a “91-day
extension of time on all deadlines in this case,” as evidence that it did not waive its
opportunity to seek to compel further production. Dkt. 51 at 5–6. Fox’s reliance on that
order is misplaced. It is true that at first blush, the order would appear to extend the written
discovery deadline by 91 days. However, the order merely placed the Court’s imprimatur
on a schedule the parties had previously stipulated to; the stipulation called for a 91-day
extension to the deadlines to complete depositions and for the Government to file a
renewed motion to dismiss, but not to the written discovery deadline. Dkt. 42 at 4. The
parties indicated that there were some disputes over the scope of the written discovery the
Government had already produced, but did not say that they would need additional time to
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complete written discovery. Id. at 2. Accordingly, the Court’s June 12 order explicitly set
a new date for the close of depositions, but not for the close of written discovery. See Dkt.
43. Taken in context, then, the Court’s June 12 order had no impact on the close of written
discovery, which had occurred almost three months prior.
Fox had the opportunity to attempt to resolve this dispute with the Government and
inexplicably failed to provide the Government with necessary information for more than
two months. Fox had the opportunity to involve the Court in resolving the dispute and took
more than four months after the close of written discovery to do so. Taken together, Fox’s
delays constitute a waiver of its right to challenge the scope of the Government’s
production.
III.

The Merits

Even if Fox had not waived the opportunity to object to the scope of production, it
would not be entitled to the documents that it seeks. To get the Court to perform an in
camera review of the documents the Government claims are privileged, Fox has to prove
that there is reason to believe that the Government claimed privilege improperly. See
Zolin, 491 U.S. at 574–75. Fox has failed to meet this standard.
Fox claims that it is entitled to five categories of documents that the Government
has not produced: (1) emails copied to a Government lawyer, (2) emails including
Contracting Officer Major Rebecca Ban regarding “the change of the payment mechanism”
that Major Ban approved, (3) partially redacted documents that it believes should not be
redacted, (4) completely withheld documents it believes should not have been withheld,
and (5) documents related to task orders other than Task Order 42 (the task order at issue
in this case). Dkt. 46 at 5–6. However, Fox has failed to provide any evidence tending to
show that the Government improperly withheld or redacted these documents.
Instead, Fox merely speculates that the Government is being “intentionally”
obstructive out of a fear that “some portion” of the withheld information “is both not
privileged and/or will hurt the Government’s case.” Dkt. 46 at 11. This sort of misconduct
on the part of the Government’s attorneys would be extraordinary. The Court would expect
accusations of this kind to be supported by compelling evidence. Fox supplies no evidence.
Mere speculation that the Government improperly claimed privilege does not “support a
reasonable belief” that the Government acted wrongfully. See Zolin, 491 U.S. at 574–75.
Fox relies on the broad scope of general discovery as justifying its motion to compel,
arguing that it is entitled to “a broad search for facts . . . which may aid [it] in the preparation
of [its] case.” Dkt. 51 at 11 (quoting Fed. R. Civ. P. 26 advisory committee’s not to 1946
amendment). For the third time, the Court holds that as this case currently stands, Fox is
only entitled to limited jurisdictional discovery to determine Major Ban’s intent when she
modified Task Order 42. See Fox Logistics, 145 Fed. Cl. at 241–42; Dkt. 49 at 4–5. The
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Court is convinced that the Government has provided Fox with all non-privileged
documents relevant to this limited question.
Conclusion
Fox waived its right to challenge the scope of the Government’s production. Even
if it had not, its motion to compel is without merit. For these reasons, Fox’s motion to
compel production of documents is DENIED.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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