Toomer v. Terrapower, LLC et al

Filing 127

MEMORANDUM DECISION AND ORDER - BEAs Motion to Compel (Dkt. 108 ) is DENIED. Toomers Motion to Compel (Dkt. 116 ) is DENIED. Toomers Motion to Extend and For Sanctions (Dkt. 122 ) is DENIED as MOOT. Briefing on the Motion for Summary Judgment (Dk t. 120 ) will RESUME. Toomer has twenty-one (21) days from the issuance of this order to respond to the Motion for Summary Judgment. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THE UNITED STATES OF AMERICA,
ex rel., DOUGLAS TOOMER,
Plaintiff,

Case No. 4:16-cv-00226-DCN
MEMORANDUM DECISION AND
ORDER

v.
TERRAPOWER, LLC and BATTELLE
ENERGY ALLIANCE, LLC,
Defendant.

I. INTRODUCTION
Pending before the Court is Defendant Battelle Energy Alliance, LLC’s (“BEA”)
Motion to Compel (Dkt. 108), Plaintiff Douglas V. Toomer’s (“Toomer”) Motion to
Compel (Dkt. 116), and Toomer’s Motion to Extend Deadline and for Sanctions (Dkt. 122).
Having reviewed the record and briefs, the Court finds that the facts and legal arguments
are adequately presented. Accordingly, in the interest of avoiding delay, and because the
Court conclusively finds the decisional process would not be significantly aided by oral
argument, the Court will decide the Motions on the record and without oral argument. Dist.
Idaho Loc. Civ. R. 7.1(d)(1)(B).
For the reasons set forth below, BEA’s Motion to Compel is DENIED, Toomer’s
Motion to Compel is DENIED, and Toomer’s Motion to Extend Deadline and For
Sanctions is DENIED as MOOT. Briefing for BEA’s Motion for Summary Judgment will
RESUME and Toomer will have twenty-one days (21) to respond from the date of this
order.
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II. BACKGROUND
On June 6, 2016, Douglas Toomer, an individual, filed a complaint against
Defendants TerraPower, LLC (“TerraPower”) and BEA (collectively “Defendants”) on
behalf of the United States Government. Dkt. 1. He then filed an Amended Complaint in
February 2017, asserting eight claims: (1) presentation of false claims in violation of the
False Claims Act (“FCA”); (2) making or using false records or statements in violation of
the FCA; (3) failure to deliver possession of property in violation of the FCA; (4)
concealing or avoiding obligations to the Government in violation of the FCA; (5)
conspiring to commit violations of the FCA; (6) declaratory judgment; (7) unjust
enrichment/mistake of fact; and (8) unlawful employment retaliation. Dkt. 10.
The FCA does not permit a relator1 like Toomer to serve a complaint on the
Defendants until the Government decides whether it wishes to intervene, or to allow the
relator who originally filed the case to proceed with the litigation on the Government’s
behalf. Thus, Toomer, as the “relator” in the suit, originally only served the Complaint on
the Government.
On November 11, 2017, the Government elected to move for dismissal, rather than
allow the litigation to proceed in its name. However, the Government did not formally

1

The Ninth Circuit has succinctly described “relators” and the structure of a FCA case as follows:
Under the False Claims Act, any person who defrauds the United States Government is
liable for civil penalties. 31 U.S.C. § 3729 (1994). Although the FCA requires the Attorney
General to investigate possible violations, id. § 3730(a), the FCA also permits civil qui tam
actions by private persons, known as relators, id. § 3730(b). In a qui tam action, the relator
sues on behalf of the government as well as himself. If the relator prevails, he receives a
percentage of the recovery, with the remainder being paid to the government.
U.S. ex rel. Biddle v. Bd. of Trustees of Leland Stanford, Jr. Univ., 161 F.3d 533, 535 (9th Cir. 1998).

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intervene in the case under 31 U.S.C. § 3730(c)(3) prior to moving for dismissal.
On October 10, 2018, the Court granted the Government’s motion to dismiss all of
Toomer’s claims except for his unlawful employment retaliation claim. Dkt. 40. Toomer
is seeking $7,708,662 in damages for lost wages, lost benefits, and emotional distress as
the result of BEA’s purported retaliation. Dkt. 10, ¶¶ 78–80; Dkt. 109, at 13.
On November 2, 2018, BEA filed a Motion to Strike Allegations relating to the
dismissed claims. Dkt. 49. The Court denied the Motion to Strike and ruled that some of
the allegations in the dismissed claims may still be relevant to the remaining retaliation
claim. Dkt. 70.
Later, the parties engaged in discovery and a Protective Order was issued by the
Court on February 2, 2021. Dkt. 92.
The Court turns next to a review of the facts giving rise to the instant motions.
A. BEA’s Motion to Compel
On or about May 7, 2021, Toomer responded to BEA’s Interrogatories and Requests
for Production. Dkt. 111, at 2. Conflicts arose between the parties because of Toomer’s
answers to Interrogatories Nos. 5, 12, 13, and Requests for Productions Nos. 13 and 14.
Dkt. 108-1, at 3–6. Thereafter the parties met and conferred with each other—and the
Court—to remedy the disagreements with Toomer’s answers. Eventually these efforts
resulted in an agreement between the parties that Toomer would produce all of his medical
documents from 2014 to the present. Dkt. 108-1, at 6; Dkt. 111, ¶ 5. The Court will briefly
review the disputed interrogatories and requests.

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Interrogatory No. 5 asked Toomer for, “a full and complete itemization of all
damages claimed by you with regard to your Eighth Cause of Action (relief from
retaliation) alleged in your Complaint.” Dkt. 108-1, at 3. In addition, BEA asked for
Toomer to identify all persons who have knowledge of the facts that lead to the damages.
Id. Toomer’s response stated that, “[d]amages for emotional distress will be determined by
a jury in accordance with the jury instructions.” Id.
Interrogatories No. 12 and No. 13 ask for similar information such as providing a
list of all healthcare providers that Toomer has seen since 2014. Id. at 3–5. After numerous
meet and confer attempts (and supplemental answers), Toomer answered both
interrogatories by producing a letter from Dr. Leland Krantz—his former primary
physician—which stated that the reason for Toomer’s high blood pressure, despite “weight
loss,” was because of “job stressors.” Dkt. 111, at 2; Dkt. 109, at 175. Toomer has also
produced medical records from Dr. Roger H. Tall—a Urologist at Mountain View
Hospital—which show the medication he was taking in 2016, and that he had hypertension
and other medical issues. Dkt. 109, at 5, 158–59.
Requests for Production No. 13 and 14 asked for Toomer’s medical records and a
list of healthcare providers he had seen relating to his retaliation claim. Dkt. 108-1, at 5–6.
In response, Toomer pointed towards the letter from Dr. Krantz and the records from Dr.
Tall. Dkt. 108-1, at 5–6; Dkt. 111, at 2.
BEA found Toomer’s responses, and the items produced, inadequate. Toomer
admits there were likely more medical records, but they were probably “lost and disposed
of” after Dr. Krantz retired and sold his practice to Mountain View Hospital in 2016. Dkt.
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111, at 3–4. Toomer states he sent Mountain View Hospital an authorization request for all
his medical records and had given BEA everything that Mountain View Hospital gave to
him. Id. BEA is unconvinced by Toomer’s reasoning and believes that Toomer
“backtracked” from his promise to produce all relevant medical records. Dkt. 108-1, at 4,
6, 7–8, 19.
On March 28, 2022, BEA filed a Motion to Compel. Dkt. 108. On April 18, 2022,
Toomer filed his Response. Dkt. 111. On May 2, 2022, BEA filed its Reply. Dkt. 113.
Additionally, BEA moved the Court for attorney fees and costs if the Motion is granted
under Federal Rule of Civil Procedure 37. Dkt. 108-1, at 19. In his Response, Toomer asked
for attorney fees and costs under Rule 37 if the Motion is denied. Dkt. 111, at 7–8.
Toomer contends that BEA is engaging in a “fishing expedition” to harass him, that
he has provided all medical documents from 2014 to present to BEA, that Dr. Krantz and
Mountain View Hospital were the only providers he used for medical treatment, and that
any additional medical history is irrelevant. Id. at 2, 6. BEA suspects that Toomer has seen
more providers outside of Mountain View Hospital. Dkt. 109, ¶ 15. BEA also argues that
this discovery dispute would be resolved if Toomer would sign a medical release form to
allow BEA to search for any additional documents on Toomer’s behalf. Dkt. 108-1, at 17;
Dkt. 113, at 6.
B. Toomer’s Motion to Compel
On June 7, 2019, Toomer requested production of communications and documents
from BEA. Dkt. 116, at 2. BEA objected to Requests for Production Nos. 1–3 and 5–8. Id.
In these Requests, Toomer asked BEA to turn over any and all communications or
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documents relating to various subject matter. Again, in this Motion, Toomer also moved
for attorney fees and costs if the Motion is granted. Id. at 8. BEA in its Response asked for
attorney fees and costs if the Motion is denied. Dkt. 117, at 18.
Request for Production No. 1 sought “[a]ny and all internal and external
communications pertaining to the subject matter of the case.”2 Dkt. 116, at 2. BEA
answered by stating that: (1) it objected to Toomer’s definition of “subject matter of the
case”; and (2) the Request would invade the attorney-client privilege or the attorney work
product doctrine. Id.
Request for Production No. 2 sought “[a]ny and all communications or documenting
pertaining to the subject matter of this case or with federal agencies, including the United
States Department of Energy.” Id. at 3. BEA answered by stating that: (1) it objected to
Toomer’s definition of “subject matter of the case”; (2) the Request was “overly broad,
unduly burdensome and not reasonably limited in time and scope”; and (3) the attorneyclient privilege or attorney work product doctrine would be invaded if it complied with the
Request. Id.
Request for Production No. 3 sought “[a]ny and all external or internal
communications or documents with regard to the plaintiff Doug Toomer.” Id. BEA
answered by stating that: (1) it objected to Toomer’s definition of “subject matter of the
case”; (2) the Request was “overly broad, unduly burdensome and not reasonably limited

2

Toomer defines the “subject matter of the case” as “US Ex. Rel. Toomer v. TerraPower, LLC, Case No:
4:16 CV00226-DCN filed in the United State District Court for the District of Idaho, including every
allegation and cause of action stated therein.” Dkt. 117-1, at 10.

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in time and scope”; (3) the Request was “disproportional to the needs of the case and seeks
irrelevant information” considering the Court’s decision issued on October 10, 2018; and
(4) the attorney-client privilege or attorney work product doctrine would be invaded if it
complied with the Request. Id.
Request for Production No. 5 sought “[a]ny and all documents, including
communications, pertaining to or with TerraPower or any off [sic] its agents.” Id. BEA
answered by stating that: (1) the Request was “overly broad, unduly burdensome and not
reasonably limited in time and scope”; (2) the Request was “disproportional to the needs
of the case and seeks irrelevant information” considering the Court’s decision issued on
October 10, 2018; and (3) the attorney-client privilege or attorney work product doctrine
would be “invaded” if it complied with the Request. Id. at 3–4.
Request for Production No. 6 sought “[a]ny and all documents including internal or
external communications pertaining to or with the Department of Justice and the US
Attorney with regard to the subject matter of this case.” Id. at 4. BEA answered by stating
that: (1) it objected to Toomer’s definition of “subject matter of the case”; (2) the Request
was “overly broad, unduly burdensome and not reasonably limited in time and scope”; and
(3) the attorney-client privilege or attorney work product doctrine would be invaded if it
complied with the Request. Id.
Request for Production No. 7 sought “[a]ny and all internal or external
communications or documents to any person pertaining to the subject matter of this case.”
Id. BEA answered by stating that: (1) it objected to Toomer’s definition of “subject matter

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of the case”; and (2) that the Request would invade the attorney-client privilege or the
attorney work product doctrine. Id.
Request for Production No. 8 sought “[a]ny and all documents pertaining to
CRADAs, current, past and future that have been developed or entered into with the
assistance of BEA. Please include all drafts, notes, memoranda or any communications
relating to the CRADAs.”3 Id. BEA answered by stating that: (1) the Request was “overly
broad, unduly burdensome and not reasonably limited in time and scope”; (2) the Request
was “disproportional to the needs of the case and seeks irrelevant information” considering
the Court’s decision issued on October 10, 2018; and (3) the attorney-client privilege or
attorney work product doctrine would be “invaded” if it complied with the Request. Id. at
4–5.
In addition to the aforementioned objections, BEA stated in each of its answers to
the Requests that it produced documents identified as Bates Nos. BEA00001-531. BEA
states that these documents contained “correspondence and Toomer’s personnel file.” Dkt.
117-1, ¶ 4. BEA appeared to hand over these documents pursuant to an agreement with
Toomer with the understanding that “Mr. Toomer will not use that particular document
production as a basis for any argument that Battelle has waived a protection or privilege.”
Dkt. 117, at 5. In addition, BEA produced Toomer’s non-privileged personnel file pursuant
to Request for Production No. 4, which Toomer did not object to in his Motion. Id. at 15.

3

“CRADA” stands for “Cooperative Research and Development Agreements.” Dkt. 10, at 5. These
agreements were established under the Federal Technology and Transfer Act of 1986 and designed to
“establish collaborative research and development agreements for technological innovations and
developments for use by both Government and private industry.” Id.

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Toomer stated that he clarified some of the Requests in email exchanges between
the parties, but it does not appear that Toomer formally supplemented his Requests. Dkt.
118, at 5, 7.
III. LEGAL STANDARD
The Federal Rules of Civil Procedure dictate the scope of discovery: “Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26 (b)(1). For
discovery purposes, courts define relevance broadly, regarding information as relevant if
it “bears on,” or might reasonably lead to information that “bears on,” any material fact or
issue in the action. See Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Proportionality is determined by “considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ.
P. 26(b)(1). “The fundamental principle of . . . Rule 26(b)(1) is that lawyers must size and
shape their discovery requests to the requisites of a case.” United States v. HVI Cat Canyon,
Inc., 2016 WL 11683593, at *4 (C.D. Cal. Oct. 26, 2016) (cleaned up). Courts must limit
the frequency or extent of discovery if it becomes cumulative or duplicative or if the
information is available more efficiently from another source. See Fed. R. Civ. P.
26(b)(2)(C).
If a party served with discovery fails to adequately respond, the serving party may
file a motion to compel pursuant to Federal Rule of Civil Procedure 37(a). “A court has
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broad discretion in deciding whether to compel discovery.” Tanner v. Schriever, 2019 WL
5581335, at *1 (D. Idaho Oct. 29, 2019) (citing Phillips ex rel. Estates of Byrd v. General
Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002)). Discovery is permitted “regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id.
IV. ANALYSIS
A. BEA’s Motion to Compel
BEA is correct that there is no dispute between the parties that Toomer agreed to
provide all of his medical records from 2014 to the present. Dkt. 111, at 7; Dkt. 113, at 2.
Toomer believes that most of the documents he provided were irrelevant, but nonetheless
contends he provided the requested documents to BEA and that there is nothing more that
he can do to find any lost or destroyed evidence. Dkt. 111, at 7.
Further, BEA is correct that Toomer has placed his medical condition of emotional
distress at issue by seeking emotional damages for BEA’s purported retaliation. Clark v.
Bank of Am., N.A., 2016 WL 6275129, at *2 (D. Idaho Sept. 29, 2016) (“When a plaintiff
claims emotional distress, then a defendant needs to be able to challenge that claim
thoroughly”). The medical records may, or may not, show that BEA’s conduct contributed
to Toomer’s emotional distress, which makes them discoverable. Id. Moreover, these
records could bear on Toomer’s retaliation claim because BEA’s purported retaliation may
or may not have created or exacerbated Toomer’s emotional distress. See Oppenheimer
Fund, 437 U.S. at 351. In sum, considering the broad standard for relevant evidence under
the Federal Rules of Civil Procedure, the medical records that BEA seeks are discoverable.
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However, this does not change the fact that Toomer contends he has already
provided every medical record he could to BEA. The core issue with this Motion is not
whether the evidence is relevant and discoverable, but whether these additional documents
even exist. This leaves the burden on BEA to show that additional medical documentation
exists. “The party seeking production of the documents . . . bears the burden of proving
that the opposing party has” possession, custody, or control over the evidence
requested. United States v. Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d
1450, 1452 (9th Cir. 1989). Here, Toomer has stated repeatedly that the additional
documents do not exist because some were likely lost or disposed of when Dr. Krantz sold
his practice to Mountain View Hospital. The Court accepts BEA’s belief that additional
documents likely did exist at one point, but also accepts Toomer’s position that they are no
longer accessible and that he has no control over the evidence.4 Toomer cannot be
compelled to produce something that does not exist or is outside of his control to obtain.
Hayes v. Nettles, 2020 WL 5898775, at *2 (D. Idaho Oct. 5, 2020) (“Defendants cannot be
forced to produce something that does not exist.”).
BEA argues that if the additional documents do not exist, then Toomer should have
produced evidence from Mountain View Hospital stating that the additional records cannot
be recovered.5 Dkt. 113, at 5–6. BEA alleges that Toomer did not make a reasonable

4

BEA admits that it lacks confidence that Toomer can fully identify his providers because of the “passage
of time since 2014.” Dkt. 108-1, at 17.
5
The rules require the requested party to provide all requested relevant documents within its custody or
control. Fed. R. Civ. P. 34(a). The rules do not require or authorize the requested party to provide an
affirmation or declaration from the third party (here Mountain View Hospital) that no other documents
exist. See Fed. R. Civ. P. 34(b)(2); Fed. R. Civ. P. 37(a). BEA has provided no case law that suggests that
a court can require the requested party to get such an affirmation or declaration from a third party.

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inquiry into these additional documents. Id. at 6. Toomer contends he did everything he
reasonably could to investigate the existence of any other documents.
For their arguments regarding reasonable inquiry, both parties rely on O’Brien v.
Said, 2020 WL 3058092 (E.D. Cal. June 9, 2020). In O’Brien, the court stated, “[a]
reasonable inquiry must be made, and if no responsive documents or tangible things exist,
[] the responding party should so state with sufficient specificity to allow the Court to
determine whether the party made a reasonable inquiry and exercised due diligence . . . .”
2020 WL 3058092, at *2 (cleaned up). Here, BEA may not trust Toomer when he says he
has committed all reasonable efforts to obtain the documents requested, but it does not
change that Toomer’s responses are legally adequate. “[I]n the absence of legal or factbased substantive deficiencies, [the movant] is required to accept the responses provided.”
Id. at 5.
The Court does not believe there are substantive deficiencies in Toomer’s responses
regarding the difficulty recovering the additional documents. Toomer has stated he only
received medical care from Dr. Krantz and Mountain View Hospital since 2014, which is
consistent with the documents provided to the Court. Dkt. 111-2, ¶ 3. BEA states that
Toomer may have seen other providers outside of Mountain View Hospital and provides a
list of recorders/providers from a Mountain View Hospital record. Dkt. 109, ¶ 15. It appears
that these providers are associated with Mountain View Hospital and that Toomer saw
these providers at Mountain View Hospital. This is consistent with Toomer’s statements
that he has only received care from Mountain View Hospital after Dr. Krantz retired.
Additionally, Toomer’s signed discovery responses certify that, to the best of his
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“knowledge, information, and belief”, he made a reasonable inquiry. Fed. R. Civ. P.
26(g)(1)(B).6
The Court agrees with BEA that additional medical documents are relevant and
discoverable under the Federal Rules of Civil Procedure, but BEA has not been able to
prove that Toomer has possession, custody, or control of any additional medical
documents. The Court finds that Toomer has made a reasonable inquiry with sufficient
specificity and due diligence into the evidence that BEA requested. While BEA is
distrustful of Toomer’s responses, without clear evidence of substantive deficiencies in
those responses, the Court must accept Toomer’s explanations.
Thus, BEA’s Motion to Compel is DENIED.
B. Toomer’s Motion to Compel
Toomer is substantially justified in bringing his Motion to Compel because some of
the evidence sought after may be within the scope of discovery. Ultimately, however, most
of the Requests are overbroad and would be unduly burdensome to produce.
Toomer relies on the Court’s March 5, 2019 Decision as the basis for why his
Requests are justified. However, Toomer is incorrect in his assertion that—because the
Court denied BEA’s Motion to Strike—the door is open for him get every document he
desires from BEA. The objections from BEA revolve primarily around the Requests being:
(1) outside the scope of discovery; (2) overbroad; (3) and unduly burdensome.7
6

Toomer still has a duty to supplement his discovery responses if he learns of any additional relevant
evidence under Fed. R. Civ. P. 26(e)(1). Failure to supplement may result in severe consequences for
Toomer and Toomer’s counsel. See Fed. R. Civ. P. 37(c).
7
BEA did raise attorney-client privilege objections in its answers to the Requests, but in its Response to
Toomer’s Motion, it states it has already produced the materials sought. Dkt. 117, at 8. The attorney-client

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1. Scope of Discovery
BEA relies on Oppenheimer Fund for why information relating to the dismissed
claims are now outside the scope of discovery.8 The limitation that BEA cites refers to
when facts have been stricken from the record. But nothing has been stricken from the
Court’s record in this case. When the Court denied BEA’s Motion to Strike, it stated:
While the nature of this case (i.e. the fact that it began as a qui tam action)
makes this a slightly unusual situation—and adds a layer of complexity—
BEA carries a heavy burden in persuading the Court to grant a 12(f) motion.
Here, BEA has not met that burden. Particularly concerning to the Court is
the possibility that some of the information BEA asks the Court to strike may
yet prove relevant to Toomer’s retaliation claim.
Dkt. 70, at 6 (emphasis in original). It is reasonable to assume that communications
between BEA, the Government, and TerraPower involving Toomer and the CRADA
agreements could bear on the retaliation claim because Toomer alleges he was retaliated
against for speaking out against the CRADA agreements. See Oppenheimer Fund, 437 U.S.
at 351. The Court finds that some of those communications could be relevant.
2. Overbroad
However, the Requests and the definition of “subject matter of the case” are
overbroad. In Jackson v. Montgomery Ward & Co., the court did not find the plaintiff’s
privilege objections are not explored and explained enough in BEA’s Response, so the Court will not
consider these objections. Additionally, BEA argues that Toomer did not properly meet and confer because
there was not a certification included with Toomer’s Motion. Id. at 18. Toomer had a Declaration attached
to his Motion referencing exhibits but did not include them with his Motion. Dkt. 116-1, at 1. BEA did
include correspondence between the parties in its Response and it appears a meet and confer did not happen
when it comes to issues of this Motion. See Dkt. 117-1. However, because of the overlapping issues in the
Motions to Compel, and the various meetings the parties have already done, the Court will not punish
Toomer for not executing another meet and confer for this specific Motion.
8

Under Federal Rule of Civil Procedure 26, “it is proper to deny discovery of matter that is relevant only
to claims or defenses that have been stricken.” Oppenheimer Fund, 437 U.S. at 352.

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discovery requests were overbroad because each was: (1) restricted to the period of
employment; (2) geographically restricted; and (3) limited to the subject matter of racial
discrimination. 173 F.R.D. 524, 528 (D. Nev. 1997).
First, Toomer’s definition for the “subject matter of the case” is not clearly defined.
The subject matter of this case relates to facts regarding the retaliation claim. The Court
left the door open in its Decision on the Motion to Strike that some of the information in
the dismissed claims could be relevant to the retaliation claim. Toomer stated that every
allegation and every cause of action was a part of the subject matter, but that is only true if
it is in relation to the retaliation claim. The scope of this definition is far too wide for BEA
to properly comply.
Second, many of the requests ask for “any and all” communications between
multiple governmental agencies, companies, BEA, and/or Toomer with almost no
limitation as to the time period or specific subject matter (such as the CRADAs). Request
No. 8 does reference the CRADAs but seeks all CRADAs developed by BEA with no
limitation. Toomer admitted that two of the Requests—Nos. 3 and 4—were overbroad, but
tried to limit them in emails with BEA to communications between TerraPower and BEA
pertaining to the CRADAs. Dkt. 118, at 5, 7. However, even with Toomer’s amendments
and explanations, the time period is not restricted, and it is unclear how some of these
Requests relate to the retaliation claim and Toomer specifically.
3. Unduly Burdensome
In addition, all of the Requests would be unduly burdensome for BEA to produce.
“The party claiming that a discovery request is unduly burdensome must allege specific
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facts which indicate the nature and extent of the burden, usually by affidavit or other
reliable evidence.” Jackson, 173 F.R.D. at 528–29. Here, BEA has objected to each of the
Requests stating that many of the Requests would involve: (1) gathering every email that
Toomer sent since he started working in 2005; (2) locating all agreements between these
various companies, some of which may not even relate to Toomer; and (3) identifying
communications between other companies and governmental agencies that may not relate
to Toomer. The amount of documents that Toomer seeks with his broad definitions is,
frankly, limitless, and the Court finds the time and expense that would place on BEA to
produce these documents outweighs Toomer’s interests in them.
4. Conclusion
The Court will not contort Toomer’s Requests in such a manner so they survive
Rule 26. Toomer was aware that some of his Requests were deficient but provided BEA
with no supplemental Requests to cure those deficiencies. It is true that some of the
information that Toomer seeks could be within the scope of discovery and relevant, but
without more narrow requests, the burden on BEA is too great.
The Court finds all Toomer’s Requests overly broad and unduly burdensome, and
thus, Toomer’s Motion to Compel is DENIED.
C. Fees and Costs under Rule 37(a)(5)
Each of the parties moved for attorney’s fees and costs in their respective Motions
pursuant to Federal Rule of Civil Procedure 37(a)(5)(A)–(B), which, on the granting or
denial of a motion to compel discovery, allows the moving party or the responding party
to recoup its attorney’s fees and costs from the opposing party. Since both Motions are
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denied, Rule 37(a)(5)(B) would be applicable here.
Under Rule 37(a)(5)(B), if a motion to compel discovery is denied “the court must
. . . require the movant . . . to pay the party . . . who opposed the motion its reasonable
expenses incurred in opposing the motion, including attorney’s fees.” The Court must not
order the payment if the motion “was substantially justified or other circumstances make
an award of expenses unjust.” Id.
The Court finds an award of fees and costs unnecessary because the Motions to
Compel were both substantially justified. The discovery sought after in the Motions was
likely relevant and within the scope of discovery, but other reasons warranted denial. It
was, nonetheless, reasonable for each party to bring their Motions.
Thus, an award of attorney fees and costs will not be granted for either party; the
parties will bear their own expenses.
D. Motion to Extend Deadline and For Sanctions (Dkt. 122)
The arguments and issues in this Motion are largely focused on the issues
surrounding the Motions to Compel and BEA’s Motion for Summary Judgment. Toomer
seeks an extension to respond to BEA’s Motion for Summary Judgment until the Court
rules on Toomer’s Motion to Compel. Dkt. 122, at 1. Seeing as the Court denies both
Motions to Compel and rules that the parties will bar their own costs, the Court sees no
purpose in this Motion any longer. Thus, this Motion is DENIED as MOOT.
The Court wants to make clear that it will not consider any new motions to reopen
discovery. Discovery has been closed for over a year and it will remain closed. The Court
will not consider the same arguments it has already addressed regarding discovery. Briefing
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for the Motion for Summary Judgment will RESUME with the issuance of this Motion.
V. CONCLUSION
In sum, both Motions to Compel are DENIED, the party’s will bear their own fees
and costs, and the Motion to Extend and For Sanctions will be DENIED as MOOT.
Briefing for the Motion for Summary Judgment will RESUME, and Toomer will have
twenty-one (21) days from the issuance of this Order to respond.
VI. ORDER
IT IS HEREBY ORDERED:
1. BEA’s Motion to Compel (Dkt. 108) is DENIED.
2. Toomer’s Motion to Compel (Dkt. 116) is DENIED.
3. The parties will bear their own fees and costs.
4. Toomer’s Motion to Extend and For Sanctions (Dkt. 122) is DENIED as MOOT.
5. Briefing on the Motion for Summary Judgment (Dkt. 120) will RESUME. Toomer
has twenty-one (21) days from the issuance of this order to respond to the Motion
for Summary Judgment.

DATED: October 18, 2023
_________________________
David C. Nye
Chief U.S. District Court Judge

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