STATE OF MISSISSIPPI et al v. USA

Filing 161

REPORTED OPINION denying 152 Motion for Protective Order filed by all plaintiffs. Signed by Chief Judge Elaine D. Kaplan. (jag) Service on parties made.

In the United States Court of Federal Claims
STATE OF MISSISSIPPI, et al.
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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Consolidated
Nos. 19-231L/19-258L/19-1968L/
19-1812L/20-30L/21-820L
(Filed: December 22, 2022)

John W. (Don) Barrett, Barrett Law Group, P.A., Lexington, Mississippi, with whom was Patrick
W. Pendly, Pendley, Baudin & Coffin, L.L.P, Plaquemine, Louisiana, for Plaintiffs. Jonathon W.
Cuneo, Cuneo Gilbert & Laduca, LLP, Washington, DC, Mark H. Dubester, Cuneo Gilbert &
Laduca, LLP, Washington, DC, Jennifer E. Kelly, Cuneo Gilbert & Laduca, LLP, Washington,
DC, David McMullan, Jr., Barrett Law Group, P.A., Lexington, Mississippi, Jerry Abdalla,
Abdalla Law, PLC, Ridgeland, Mississippi, Robert J. Cynkar, McSweeney, Cynkar &
Kachouroff, PLLC, Great Falls, Virginia, William F. Blair, Blair & Bondurant, P.A., Jackson,
Mississippi, Richard Barrett, Law Office of Richard R. Barrett, PLLC, Oxford, Mississippi, and
Larry D. Moffett, Law Office of Larry D. Moffett, PLLC, Oxford, Mississippi, Of Counsel.
Davené D. Walker, U.S. Department of Justice, Environment & Natural Resources Division,
Washington, DC, with whom were Brent Allen, U.S. Department of Justice, Environmental
Resources Division, Washington, DC, Lucas Lallinger, U.S. Department of Justice, Environment
& Natural Resources Division, Washington, DC, and Todd Kim, Assistant Attorney General,
Environment & Natural Resources Division, for Defendant.
OPINION AND ORDER
KAPLAN, Chief Judge.
On October 11, 2022, the United States served 543 requests for admissions (“RFAs”),
two interrogatories, and one request for production on the Plaintiffs in this case. See Pls.’ Mot.
for Protective Order, Ex. 1, ECF No. 152-1. On November 21, 2022, the Plaintiffs moved for a
protective order seeking to avoid responding to any of those RFAs. See Pls.’ Mot. for Protective
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Order at 1, ECF No. 152. For the reasons explained below, the Court DENIES the Plaintiffs’
motion.
The Plaintiffs’ primary objection to the RFAs is a generic one—that they are “unduly
burdensome, cumulative, and unrelated to any purpose associated with the actual stream-lining
of the issues in the case.” See id. They argue that the number of requests alone indicates that they
are “excessive and unjustifiably burdensome.” Id. at 3. The Plaintiffs also mention several
categories of requests that they argue are improper. These include requests concerning the United
States Army Corps of Engineers’ subjective intent with respect to its operation and management
of the Old River Control Complex (“ORCC”), what Plaintiffs characterize as “materially
misleading” requests regarding flooding and its impacts, and requests already covered during
depositions. See id. at 3–9. Because the RFAs are excessive and unrelated to the core issues of
the case, the Plaintiffs argue, the Court should grant a protective order barring the government
from seeking responses to their RFAs in full. See id. at 3; see also Pl.’s Reply to Def.’s Resp. to
Pls.’ Mot. for Protective Order at 4, ECF No. 158.
If a party believes that RFAs violate this Court’s discovery rules, it may move for a
protective order. See Rule 26(c)(1) of the Rules of the Court of Federal Claims (“RCFC”).
Parties moving for a protective order in the discovery context must demonstrate that good cause
exists to provide the requested relief. See RCFC 26(c)(1).1 “In order to establish ‘good cause,’ a
party must show ‘that the discovery request is considered likely to oppress an adversary or might

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Moving parties must also certify that they attempted to confer in good faith with nonmoving
parties to attempt to resolve the dispute without the Court’s intervention. See RCFC 26(c)(1); see
also Lakeland Partners, LLC v. United States, 88 Fed. Cl. 124, 136 (2009). Plaintiffs noted in
their motion that they attempted to confer with the government to resolve this dispute and have
therefore satisfied this requirement. See Pls.’ Mot. for Protective Order at 2 n.3.
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otherwise impose an undue burden.’” Lakeland Partners, LLC v. United States, 88 Fed. Cl. 124,
133 (2009) (quoting Sparton Corp. v. United States, 44 Fed. Cl. 557, 561 (1999)). Good cause
requires a specific demonstration that “disclosure will cause a clearly defined and serious
injury.” Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995); see also Forest
Prods. Nw., Inc. v. United States, 62 Fed. Cl. 109, 114 (2004) (requiring the same showing).
In determining whether RFAs are unduly burdensome, courts generally balance the
responding party’s burden against the needs and complexity of the case and the likely benefit to
the requesting party. See RCFC 26(b)(2). Additionally, in contrast to other discovery disputes,
courts consider the particular benefits of RFAs in (ideally, at least) “expedit[ing] trial by
removing essentially undisputed issues, thereby avoiding time, trouble and expense which
otherwise would be required to prove issues.” Burns v. Phillips, 50 F.R.D. 187, 188 (D. Ga.
1970); see also JZ Buckingham Investments LLC v. United States, 77 Fed. Cl. 37, 44 (2007);
Fed. R. Civ. P. 36 Advisory Committee’s Note (1970 Amendment) (RFAs serve “two vital
purposes, both of which are designed to reduce trial time. Admissions are sought, first to
facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to
narrow the issues by eliminating those that can be.”).2
Unlike interrogatories and other discovery requests, RCFC 36 does not place a precise
numerical limit on RFAs. Compare RCFC 33(a)(1) (requiring parties to serve no more than 25
written interrogatories to each party) with RCFC 36(a)(1) (“A party may serve on any other party
a written request to admit . . . the truth of any matters within the scope of RCFC 26(b)(1).”).
While a high number of RFAs alone may indicate that the requests impose an undue burden on

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Fed. R. Civ. P. 36 is identical to RCFC 36. See RCFC 36 Rules Committee Notes (2002
revision).
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the responding party meriting a wholesale protective order, that number must also be considered
in light of the particular complexities of the case at hand, the number of parties involved, the
costs and benefits to the particular parties in the case, and other relevant information. See, e.g.,
Vermeer Mfg. Co. v. Toro Co., 2020 WL 8257205, at *2 (S.D. Iowa Apr. 20, 2020) (“There is
thus no magic number at which requests for admissions are presumptively burdensome; whether
the requests for admission are proportional to the case is an entirely case-specific inquiry.”);
Asarco LLC v. Union Pac. R.R. Co., 2016 WL 1755241, at *12 (D. Idaho May 2, 2016) (“[T]he
Court must consider [RFAs] in the context of the case itself. Some cases are more complicated
than others, and certainly this case has many moving parts with significant financial stakes
involved.”). Additionally, courts are not necessarily in the best position to grant wholesale
protective orders and generally prefer objections to specific requests. See U.S. Bank Nat’l Ass’n
v. SFR Investments Pool 1, LLC, 2018 WL 2271222, at *1 (D. Nev. Feb. 5, 2018) (“‘[C]ourts do
not readily grant protective orders against an entire set of discovery requests on the grounds that
the number of requests is excessive,’ and will instead generally review specific objections to
individual requests.”) (quoting Jones v. Skolnik, 2014 WL 2625000, at *2 (D. Nev. June 12,
2014) (rejecting blanket protective order and instead considering objections to specific
requests)).
Here, rather than objecting to particular requests on specific grounds and making an
effort to respond to non-objectionable requests, Plaintiffs moved for a protective order in full. As
discussed above, courts are typically not amenable to wholesale protective orders and prefer to
consider specific objections. See Jones, 2014 WL at *2. Plaintiffs here have raised a broad
objection and failed to make a sufficient showing that such broad relief is necessary.

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The number of requests, while high, is not facially excessive. This case, which began
nearly four years ago, involves well over one hundred plaintiffs, among whom are the owners of
some 36 bellwether properties across nine counties. They seek hundreds of millions of dollars in
damages. The resolution of their claims will depend on a number of highly technical and factspecific determinations concerning the design of the ORCC and its impacts over its decades of
use. See Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 3171768, at
*3 (D. Kan. Oct. 29, 2007) (“[T]he fact that the Defendants have served 1,351 requests in total is
not surprising given the number of Defendants involved in this litigation, the allegations of
conspiracy alleged and the fact that Heartland is seeking damages of $121,548,021 jointly and
severally against these defendants.”). These RFAs may assist the parties in narrowing the issues
for trial, streamlining the case, and aiding the trier of fact in narrowing in on the areas actually in
dispute. And Plaintiffs make no effort to suggest a number or category of RFAs that would be
reasonable. Without specific, limited objections to particular RFAs or any suggestions as to how
to limit the RFAs in this case short of a wholesale protective order, the Court is not inclined to
require the parties to restart the process at stage one, with more objections and motions likely to
follow. See Layne Christensen Co. v. Purolite Co., 2011 WL 381611, at *6 (D. Kan. Jan. 25,
2011) (Plaintiffs’ objection to the number of RFAs “provides little help as to what should be a
reasonable limit. . . . The rules themselves do not set a specific limit. The party claiming undue
burden carries a preliminary burden to show it.”).
Plaintiffs do single out certain categories of RFAs in their motion, although they refer to
these RFAs merely as “examples.” See Pls.’ Mot. for Protective Order at 4. For instance,
Plaintiffs object to RFAs inquiring into the Army Corps’ intentions in constructing and operating
the ORCC. See id. at 4–5. Plaintiffs also object to certain RFAs which they say are outside their

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knowledge. See id. at 4. But the Rules have a simple remedy in instances in which the
responding party has no knowledge and cannot in good faith obtain the answers: state that they
lack the knowledge. See RCFC 36(a)(4) (“The answering party may assert lack of knowledge or
information . . . if the party states that it has made reasonable inquiry and that the information it
knows or can readily obtain is insufficient to enable it to admit or deny.”).
The Court is similarly unmoved by Plaintiffs’ objections that certain RFAs are worded in
a misleading fashion. If Plaintiffs cannot in good faith admit a request, they may deny it or
qualify their answer. See id. (permitting parties to qualify or admit in part answers if good faith
requires doing so). If they believe an admission will be twisted to mean something it does not,
they can press their argument at trial. The Court understands, for instance, that the case rests
partly on the extent of flooding in particular years and is confident that it will not be misled by
an admission that some flooding occurred in certain years. See Pls.’ Mot. for Protective Order at
5–6 (arguing that admissions that flooding occurred or did not prevent Plaintiffs from farming
their land obscure the issues in the case). The heart of this litigation will rest on the parties’
dispute regarding the impacts of the ORCC and the extent of the flooding, and these admissions
will, contrary to Plaintiffs’ objections, help clarify those issues for trial rather than obscure them.
Additionally, Plaintiffs object to certain RFAs that seek answers to questions already
asked and answered in depositions. See id. at 8–9. These concerns are also unpersuasive. The
purpose of the RFAs is to permit the parties to avoid presenting evidence at trial on matters that
have been admitted. These RFAs will enable precisely that.
The Court therefore DENIES Plaintiffs’ request for a protective order with respect to the
government’s requests for admission, interrogatories, and request for production of documents.
Plaintiffs shall respond to the discovery requests within thirty days of the date of this Order.
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IT IS SO ORDERED.

s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge

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