U.S. ex rel. Griffis v. EOD Tech., Inc.
U.S. ex rel. Griffis v. EOD Tech., Inc.
2023 WL 11987211 (E.D. Tenn. 2023)
December 18, 2023
Poplin, Debra C., United States Magistrate Judge
Summary
The court denied the plaintiff's motion to compel the defendant to produce certain ESI, finding that the requested information was not relevant or proportional to the needs of the case. The court also granted the defendant's motion for a protective order, relieving them from having to respond to the plaintiff's discovery requests.
Additional Decisions
UNITED STATES OF AMERICA, ex rel. PATRICK GRIFFIS, and PATRICK GRIFFIS, individually, Plaintiffs,
v.
EOD TECHNOLOGY, INC. (N/K/A JANUS GLOBAL OPERATIONS LLC), Defendant
v.
EOD TECHNOLOGY, INC. (N/K/A JANUS GLOBAL OPERATIONS LLC), Defendant
No. 3:10-CV-204-TRM-DCP
United States District Court, E.D. Tennessee, Northern Division
Filed December 18, 2023
Poplin, Debra C., United States Magistrate Judge
MEMORANDUM AND ORDER
*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Relator's First Motion to Compel [Doc. 176]. Defendant filed an opposition and a Cross-Motion for Protective Order [Doc. 182]. Relator filed a reply in support of his motion and an opposition to Defendant's cross-motion [Doc. 183], and Defendant filed a reply in support of its cross-motion [Doc. 184]. In addition, the parties submitted a Joint Statement to Chambers on November 21, 2023, regarding Defendant's objections to Plaintiff's Second Request for Production of Documents—some of which are subject to Defendant's Cross-Motion for Protective Order. The parties appeared before the Court on December 7, 2023, for a motion hearing and appeared via telephone on December 15, 2023, for a status conference. For the reasons explained below, the Court DENIES Plaintiff's motion [Doc. 176] and GRANTS IN PART AND DENIES IN PART Defendant's motion [Doc. 182].
I. BACKGROUND
“[Defendant] is a munitions-remediation company based in Lenoir City, Tennessee” [Doc. 177 p. 1 (citing Doc. 112 pp. 11–12)]. It contracts with the United States to perform munitions response work domestically and in Iraq and Afghanistan [Doc. 112 ¶¶ 71–72]. Defendant hired Relator as the Finance Director of its Munition Response business unit in August 2009 but terminated him in February 2010 [Id. ¶ 9]. Relator generally claims that Defendant hired fictious subcontractors and fraudulently billed the Government for its services [See Doc. 112].
With respect to the allegations regarding fictious subcontracts, the Second Amended Complaint (“Complaint”) alleges that in 2005, “the Department of Defense launched a program of investing in the Iraqi people and their economy via contracting with entities that hired and trained Iraqis and that subcontracted to Iraqi companies” [Id. ¶ 73]. The Department of Defense called the security program the “Iraqi First Program” (“Program”), and it contracted with “entities that promised to further the Program's objective” [Id.]. In seeking Government contracts, Relator claims that Defendant created and proposed to subcontract to a “phantom Iraqi subcontractor” called “Irada Samida Technologia” (“IST”) [Id. ¶¶ 73–74]. Defendant created IST's logo and provided its employees with IST business cards showing them as IST personnel [Id. ¶ 76]. In doing so, Relator states that Defendant “took the names of security guards supplied by a Ugandan subcontractor on Contract 18, Task Order 5, and put their names on a purported IST invoice[,] which [Defendant] sent to itself and then billed the Army at rates far above what [Defendant] paid to the Ugandan subcontractor for the men” [Id. ¶ 78]. Defendant used IST on numerous other Government contracts [Id. ¶ 81].
Similarly, in 2005, Defendant submitted a proposal for armed services to the Army Corps, and its proposal stated that “it would subcontract the security services work to a licensed, experienced, well-established Iraqi security company with 500 employees ready to perform the work” [Id. ¶ 82]. But in reality, Defendant created the subcontractor “Al Horya” and/or “Al Hurea” (collectively referred to as, “Al Hurea”) [Id.]. Similar to IST, Defendant's employees pretended to be employees for Al Hurea [Id. ¶ 83]. Relator alleges that Defendant fraudulently represented in its contract proposal for several contracts (explained below) that it “would be paying Al Hurea for Al Hurea-employed security guards at employed, burdened labor rates, when in fact, [it] planned to and did use either workers supplied by unapproved, undisclosed subcontractors at much lower labor costs, or utilized unemployed Iraqi day laborers who were paid in cash by [it], directly, pennies on the dollars that [it then] billed to the USG for their labor” [Id. ¶ 84].
*2 On June 9, 2004, the Army Corps awarded Defendant a multiple award task order contract (“MATOC 18”) for munitions response and related services with a period of performance through December 31, 2009 [Id. ¶ 103]. Under the MATOC 18, the Army Corps awarded Defendant various tasks orders, including Task Orders 5, 6, 18, and 26 [Id. ¶ 104]. According to Relator, Defendant used fake contractors and false burdened rates on fulfilling the MATOC 18 requirements and Task Orders 5, 6, 18, and 26 [Id. ¶¶ 110, 174–84, 188–227]. Task Orders 5 and 6 were “Time and Materials,” which means that “the contractor may only invoice the government for actual incurred allowable costs, including subcontractor costs, all of which must be substantiated by invoices from such subcontractors” [Id. ¶ 108]. On both of these task orders, Defendant used fictitious Iraqi subcontractors at burdened rates [Id. ¶¶ 109–133; see also ¶¶ 174–82 (regarding similar allegations involving MATOC 18 and Task Order 18) and ¶¶ 188–227 (regarding similar allegations involving MATOC 18 and Task Order 26); and ¶¶ 228–57 (regarding similar allegations involving MATOC and Task Order 21)].
In the spring of 2007, the Government solicited proposals for the Rusafa Rule of Law Contract (“Rusafa Contract”) [Id. ¶ 134]. This work included personal security details for high-risk targets in Baghdad, including the Rusafa courthouse, the prison complex, an American base, and the Baghdad Police College [Id.]. Unlike the other contracts, the Rusafa Contract did not permit coalition forces or local nationals to be used for security reasons [Id. ¶ 136]. Defendant represented that it would hire third country nationals (“TCNs”) as security guards and would not use any subcontractors to perform the security work, but in truth, Defendant planned to contract with Askars—a company with which Defendant had a preexisting relationship [Id. ¶ 141]. And in preparing its bid, Defendant used “ ‘base salaries’ well above what it knew it would be paying Askars for the men, and then added bogus and/or inflated types of indirect costs on top of the inflated salaries” [Id. ¶ 146]. Defendant was ultimately awarded the Rusafa Contract and billed the Government at false rates [Id. ¶¶ 148–55].
In Spring 2007, the Government solicited bids for an indefinite quantity contract (“IDIQ”) for Theater-wide Internal Security Services (“TWISS I”) [Id. ¶ 156]. The Government's solicitation noted that it “would award the contract based on the contractor's inclusion and use of Iraqi subcontractors as well as the contractors' technical capability to perform the work” [Id. ¶ 159]. According to Relator, Defendant represented that it subcontracted with qualified Iraqi-owned and Iraqi women-owned businesses, which was not true [Id. ¶¶ 165–66]. It also “fraudulently burdened the rates of its security labor when [Defendant] knew it would not be incurring burdened labor rates at all because [it] would be subcontracting its TCN workforce from Askars” [Id. ¶ 166]. The Government awarded Defendant the TWISS I contract, and Defendant billed it for false claims [Id. ¶¶ 169–70]. Relator makes similar allegations with respect to Defendant's proposal and award of the TWISS II contract [Id. ¶¶ 171–73].
In September 2006, the Government awarded Defendant the Iraqi Defense Network Contract, which involved the United States' “efforts to aid the Iraqi Army in setting up IT Infrastructure and communications systems” [Id. ¶ 183]. Despite IST not existing, the Government awarded this contract to Defendant in light of its “IST lies” [Id. ¶ 184].
Based on the above, Relator alleges violations of the False Claims Act, 31 U.S.C. §§ 3729 et seq. [Id. ¶¶ 269–73; 311–38]. He claims that when he confronted Defendant about the fraudulent conduct, it terminated his employment [Id. ¶¶ 274–99; 339–348]. Relator also alleges violations of the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304 [id. ¶ 349–55], and he alleges his discharge was wrongful under Tennessee common law [Id. ¶¶ 356–62].
II. PROCEDURAL BACKGROUND
This case was filed under seal on May 4, 2010 [Doc. 1]. During the Government's investigation, Defendant responded to a subpoena served by the Department of Justice (“DOJ”) and produced 37,000 documents (“Subpoenaed Production”) [Doc. 182 p. 7]. On January 20, 2023, United States District Judge Jordan unsealed this case [Doc. 125]. Subsequently, on March 20, 2023, Relator served his First Interrogatories and Requests for Production of Documents (collectively, “First Discovery Requests”) [Doc. 176 p. 2]. The First Discovery Requests are the subject of Plaintiff's Motion to Compel [See Doc. 176].
*3 Relator claims that Defendant “has failed to make any reasonable effort to identify, review, or produce documents responsive to Relator's [r]equests” [Id. at 3]. Relator asserts two primary issues relating to the First Discovery Requests. First, Relator has submitted proposed search terms [Doc. 176-10 at 4–8],[1] and Defendant declines to run his searches. Second, Relator argues that Defendant's objections to Request for Production (“First RFP”) Nos. 5, 8–11, and 14 should be overruled.
In response to Relator's motion, Defendant seeks a protective order relieving it from running Relator's proposed search terms and from responding to First RFP Nos. 5, 8–11, and 14. In addition, Relator seeks a protective order relieving it from responding to Relator's Second Request for Production of Documents (“Second RFP”) Nos. 2–3, 10–14, 16–23, 25–27, 29, 31 38, and 40. With respect to Relator's request for certain search terms, Defendant states that the proposed terms are too broad and in light of the technical issues with the search terms, it would cost Defendant two to three workdays and $12,000 to $16,000 to simply run the terms to determine how many hits they generated. Instead, Defendant asserts that, on July 18, 2023, it proposed reasonable search terms (“July 18 Proposed Searches”), which resulted in 120,000 documents being returned [See Doc. 176-12]. At the December 7 hearing, Defendant stated that it began a rolling production of those documents in September and just completed the production the day prior to the hearing. With respect to Plaintiff's First RFP Nos. 5, 8–11, and 14, Defendant asserts that they do not seek relevant information that is proportional to the needs of this case. Defendant raises similar objections to Plaintiff's Second RFP Nos. 2, 3, 10-14, 16-17, 18–23, 25–27, 29, 21, 38, and 40.
In addition to the above disputes, Plaintiff contacted the Court on October 30, 2023, regarding his intention to file a second motion to compel relating to his Second RFPs. The Court directed the parties to submit a joint position statement detailing their respective positions prior to filing a motion to compel. On November 21, 2023, the parties submitted their Joint Position Statement Regarding the Second RFPs.
III. ANALYSIS
After reviewing the parties' positions detailed in their briefs and hearing the oral presentations, the Court denies Relator's motion [Doc. 176] and grants in part and denies in part Defendant's motion [Doc. 182]. In light of this finding, the Court orders the parties to submit to Chambers a status report regarding their Joint Position Statement as further explained below.
A. Standard of Review
Federal Rule of Civil Procedure 26(b)(1) provides as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: 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, 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.
Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998)); see also Burrell v. Duhon, No. 518CV00141TBRLLK, 2019 WL 5260481, at *2 (W.D. Ky. Oct. 17, 2019) (“The spirit and purpose of the Federal Rules of Civil Procedure demonstrate that the relevance threshold is a relatively low one.” (citation omitted)).
*4 Courts have cautioned, however, that “[d]iscovery requests are not limitless, and parties must be prohibited from taking ‘fishing expeditions’ in hopes of developing meritorious claims.” Bentley v. Paul B. Hall Reg'l Med. Ctr., No. 7:15-CV-97-ART-EBA, 2016 WL 7976040, at *1 (E.D. Ky. Apr. 14, 2016). “[T]he [C]ourt retains the final discretion to determine whether a discovery request is broad or oppressive.” Id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)).
Under Rule 37(a), a party may move to compel discovery of relevant information. Shelbyville Hosp. Corp. v. Mosley, No. 4:13-CV-88, 2017 WL 1155046, at *2 (E.D. Tenn. Mar. 27, 2017) (citing Fed. R. Civ. P. 37(a)). The party moving to compel “bears the initial burden of proving that the information sought is relevant[.]” Id. (quoting Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010)). Once the party shows relevancy, “the burden shifts to the party resisting discovery to demonstrate ‘why the request is unduly burdensome or otherwise not discoverable.’ ” First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-CV-2235-SHL-DKV, 2016 WL 5869580, at *4 (W.D. Tenn. Oct. 5, 2016) (quoting Anderson v. Dillard's, Inc., 251 F.R.D. 307, 310 (W.D. Tenn. 2008)).
Rule 26(c) governs protective orders, which provides, “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). “To show good cause, a movant for a protective order must articulate specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought and cannot rely on mere conclusory statements.” Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001) (quoting Avirgan v. Hull, 11 F.R.D. 252, 254 (D. D.C. 1987)). The party requesting the protective order has the burden of establishing good cause. Id. “[A] showing of irrelevancy of proposed discovery can satisfy the good cause requirement of Rule 26(c).” Large on behalf of Large v. Blazer, No. 3:20-CV-1012, 2022 WL 99986, at *2 (M.D. Tenn. Jan. 10, 2022).
With the above standard in mind, the Court will now turn to the parties' discovery disputes.
B. Search Terms
The parties briefed their respective positions on their proposed search terms. At the December 7 hearing, Relator acknowledged that he had received Defendant's production using the terms in the July 18 Searches, but he did not have an opportunity to review the documents given the volume of the recent production. In any event, however, Relator noted that there are fragments of information still missing, such as the costs Defendant incurred and the costs that it billed to the Government. Defendant asserted that this was the first time hearing Relator's concern. Defendant noted that it may be able to retrieve such information from its Deltech system. Defendant agreed to review its Deltech system to determine what information is available therein that Relator seeks. The Court instructed Relator to identify the missing fragments of information and to meet and confer with Defendant to determine if the parties can hone this search. The Court set a status conference for December 15, 2023.
During the status conference on December 15, 2023, Relator stated that his expert was reviewing the information that Defendant provided from the Deltech system to determine it if contains the information he needs to issue his report. His expert, however, needed additional time given the volume of the production. The parties reported that they had met and conferred on search terms and that after Defendant had identified several technical issues with Relator's proposed terms, Relator provided Defendant with updated search terms. While there are still disputes, the parties agreed to continue to work together in an attempt to determine the appropriate search terms. In light of the parties' agreement to continue to work together, the Court DENIES AS MOOT Plaintiff's request to compel Defendant to run his search terms identified in [Doc. 176-10 pp. 4–8]. The parties shall appear before the Court via telephone on December 20, 2023, at 3:00 p.m., for another status conference on this issue.
C. First RFP Nos. 5, 8–11, and 14
*5 Relator served the following discovery requests to which Defendant objects:
REQUEST NO. 5: All documents relating to labor costs actually incurred and paid by [Defendant] for munitions response, demining, and security services in Iraq, as described in [Defendant's] proposals for Task Orders 5 and 6, under other contracts from April 2004 through January 2010.REQUEST NO. 8: All documents relating to labor costs actually incurred and paid by [Defendant] for munitions response, demining, and security services in Afghanistan, as described in [Defendant's] proposals for Task Order 26, under other contracts from July 2009 through December 2011.REQUEST NO. 9: All documents relating to [Defendant's] costs for LN Security Labor, TCN Static Security Labor, LN General Labor, and TCN General Labor as described in [Defendant's] Rusafa Contract proposal, or like services in Iraq, from June 2006 through June 2007. See JANUS_0125096 - 0125106.REQUEST NO. 10: All documents relating to [Defendant's] costs for CLIN 1001AA and 2001AA Expatriate Guards, CLIN 1001 AB and 2001 AB Local National Guards, CLIN 1005AA and 2005AA Expatriate Guard Team Supervisors, and CLIN 1005AB and 2005AA Local National Guard Team Supervisors as described in [Defendant's] TWISS I Contract proposal, or like services in Iraq, from June 2006 through June 2007. See JANUS_0177253 - 177279.REQUEST NO. 11: All documents relating to [Defendant's] costs for Item No.: 0007 and 1007 TCN Guards, Item No.: 0008 and 1008 LN Guards, Item No.: 0015 and 1015 TCN Screeners, Item No.: 0016 and 1016 LN Screeners, Item No.: 0021 and 1021 TCN Guard Team Supervisors, Item No.: 0022 and 1022LN Guard Team Supervisors, Item No.: 0027 and 1027 TCN Shift Supervisors, Item No.: 0028 and 1028 LN Shift Supervisors as described in [Defendant's] TWISS II Contract proposal, or like services in Iraq, from June 2006 through June 2007. See JANUS_0051826 - 0051869.REQUEST NO, 14: All documents relating to labor costs actually incurred and paid by [Defendant] for munitions response, demining, and security services in Iraq, as described in [Defendant's] proposal for Task Order 18, under other contracts from March 2007 through September 2008.
[Doc. 176-2 pp.7–8].
Relator states that First RFP Nos. 5, 8, and 14 seek “documents related to labor costs incurred and paid by [Defendant] on other contracts for munitions response, demining, and securities services in Iraq and Afghanistan (i.e., the type of subcontractor labor [Defendant] provided under the Contracts) during certain discrete periods of time” [Doc. 176 p. 11]. Relator argues that these requests seek relevant information because they “would demonstrate that [Defendant] did not incur burdened labor costs on other contracts involving subcontractors, knew it would not incur them on the contracts at issue including with the very same subcontracted Askars Security labor force, and that [Defendant] had no intention of incurring such costs on the contracts at issue as these costs were never paid to subcontractors in the industry” [Id.]. First RFP Nos. 9, 10, and 11, according to Relator, seek Defendant's costs for subcontractor labor rates, for similar contracts to the Contracts at issue here, and for like services provided in Iraqi from June 2006 to June 2007. Relator asserts that “subcontractor labor costs incurred with respect to other contracts are relevant to [his] claims, particularly when [Defendant] was using the same or similar labor force even in the same locale” [Id.]. For example, according to Plaintiff, the “ ‘LOGAR’ contract with the British government involved nearly identical and contemporaneous work to [Defendant's] Contract 18, Task Order 26 work that [Defendant] performed for the Army Corps” [Id. at 11-12]. At the hearing, Relator asserted that, as the finance director who completed these proposals, he knows that Defendant's best practice was to rely on former contract proposals in submitting its bids. To the extent Defendant argues that other contracts are different, Relator asserts that differences are not a reason to prohibit such discovery. Relator states that such discovery is also proportional to the needs of the case.
*6 Defendant objects to the relevancy and proportionality of the requests. With respect to its relevancy objection, Defendant states that “[s]ubcontrator labor costs vary based on many factors, including the local market, regional volatility, the nature of the work performed, the nature of the labor provided, and the terms under which each subcontractor performed” [Doc. 182 p. 19 (citation omitted)]. At the hearing, Defendant argued that its contracts involve a specialized set of skills in a war environment. Unlike a contract for widgets, Defendant argued, every single contract at issue in the Complaint has unique terms that require different labor rates. In addition, Defendant submitted that other contracts are not relevant here because in determining to whom to award the contract, the Government compared prices of its competitors, and not the actual costs. In other words, Defendant explained, the Government determined what was reasonable by reviewing the competition. Even if Relator could establish relevancy, Defendant argues that the requests are overly broad, unduly burdensome, and disproportionate to the needs of the case” [Id. at 22].
As characterized by both parties, the issue is whether Relator is entitled to discovery on other contracts that are not alleged in the Complaint. Relator asserts that he needs comparator evidence, and Defendant disputes that the other contracts will reveal any comparator evidence. The Court therefore has considered whether discovery on other contracts is relevant to the allegations in this case. Generally, in determining whether such evidence is relevant in this context, the appropriate inquiry is whether the discovery requests seek true comparative evidence. See United States v. Kellogg Brown & Root Servs., Inc., 284 F.R.D. 22 (D. D.C. 2012) (denying the defendant's request for other contracts because the defendant did “not convince the [c]ourt how and to what degree these other contracts are similar to [the contract at issue]”). And here, the Court finds that Relator has not established that discovery of other contracts is relevant to the allegations in this case.
The Court finds the United States District of Columbia's decision in Kellogg Brown & Root Servs., Inc., 284 F.R.D. 22, persuasive. In that case, the United States alleged violations of the False Claims Act and breach of contract. Id. at 26. The defendant filed a motion to compel the United States to “provide documents and information relating to its contracts and interactions with other prime contractors in Iraq that relate to armed private security.” Id. at 27. The United States objected to the defendant's discovery requests, stating that its “claims in this action do not concern other contracts” and that the defendant has “not allege[d], because it cannot, that it is similarly situated to any other contractor as [the contract at issue] is not comparable to any other contract entered[.]” Id. at 35. The court stated that while discovery is generally broad, it “does not see the relevance of documents relating to other contracts.” Id. It reasoned:
This Court, after considering the arguments and evidence, agrees with the United States that matters relating to non-LOGCAP III contracts are not sufficiently relevant to compel discovery. [The defendant] has not convinced the Court how and to what degree these other contracts are similar to LOGCAP III, other than that they have force protection clauses. These contracts were made between different contracting officers and different private contractors, at different times for different purposes. LOGCAP III is not a form agreement; it is a massive, unique undertaking. [The defendant] has not explained how the contracts are sufficiently similar to make the Government's interpretation of one binding on the other.
Id. at 37–38; see also Securiforce Int'l Am., LLC v. United States, 127 Fed. Cl. 386, 399 (2016) (denying motion to compel contracts between the government and other contractors because any “comparisons” between the contract at issue and other agency contracts would not be helpful where the terms and obligations of the other contracts “could not be imposed onto plaintiff's contract with [the agency]”); see generally United States ex rel. Marsteller v. Tilton, 556 F. Supp. 3d 1291, 1310–11 (N.D. Ala. 2021) (“Evidence showing that the defendants subsequently approved a commercial sale at a lower price than what they charged the Army does not establish that they initially submitted incomplete or misleading pricing data to the Army.”).
*7 Relator asserts that Kellogg Brown & Root Servs., Inc. is inapposite because the defendant in that case requested dissimilar contracts. Here, according to Relator, his requests seek “benchmark information” [Doc. 183 p. 9]. But he has not shown that discovery of other contracts will lead him to this benchmark information. During the deposition of David Mayfield, Defendant's former CMC Program Manager,[2] the following exchanged occurred:
Q. What information would it rely on to do the costing for Task Order 5?A. What information? Previous proposals. Previous actual work. Information from subcontractors. Mostly what we provided under those contracts was labor so that was fairly straightforward as far as pricing the labor, what it cost to put a person in [the] country working 84 hours a we[e]k.Q. And how would it gather the information it needed in order to do that costing on the labor?A. We would have in the -- in the discussions with key employees we would say one of two things. This is what the government is willing to offer. And that employee could accept that. Obviously could propose something less than that but that's rare. Could propose something -- the employee might say no, I want more than that. And [Defendant] would negotiate and say, okay, you have to understand that's an unallowable cost. We can't pass that along to the government but we're willing to eat that as part - - pay for that as our profit ...
***
Q. Okay. Down later in the page there's a section called “Labor Rates.” “The labor rates proposed herein are based upon [Defendant's] pay history, industry, the Service Contract Act, and Mercer Salary Surveys.” What pay history would [Defendant] have been looking at for this price proposal to develop its pricing?A. It would involve pricing from the previous [Captured Enemy Ammunition contract] days which [Defendant] performed under. It would involve from knowledge of talking -- Let me back up for a second. The contract employees, they're 1099 employees that -- to a large degree the workers in the field are contract labor. They are not direct hires by [Defendant]. They're not wage employees, they are 1099s. Those folks are great folks. They're highly experienced. They talk a lot. They talk in the field. They talk on the phone. They all know each other's friends, family. And I might hear from one of my guys that, oh, it's costing $55 an hour now in Iraq. It's not costing 50 anymore because XYZ company is now paying 55. And all of a sudden everybody starts asking for more money in the field. Otherwise they won't come to work for you. They'll jump off and go to the 55 person. So that is a bit of the historical information that might come as part of your proposal development.
[Doc. 183-2 pp. 5, 7–8].
Relator also provides, as an example, Defendant's “LOGAR' contract with the British government[,]” stating that it “involved nearly identical and contemporaneous work to [Defendant's] Contract 18, Task Order 26 work that [Defendant] performed for the Army Corps” [Doc. 176 p. 11–12]. During the deposition of Matt Hulsey, the following exchange occurred:
Q. Okay. Do you recall whether [Defendant] used the same local nationals that worked on the Logar contract then to work as deminers on task order 26?
A. I don't recall. I mean, we typically try to keep good people. So if they were good deminers, we would have tried to keep them. I don't know about --*8 Q. If you worked with them on one contract, you could shift them to another contract, if they were good?A. Depends on the part of the country, right. So what you have to understand is, in Afghanistan, there's multiple tribes or multiple classifications of Afghans. There's Tajiks, there's Hazaras, there's Pashtun. You don't mix some of those groups together. It just doesn't work well. So depending on where the task was and depending on where the deminers were coming from would be something you would have to take into consideration. You wouldn't want to put people at risk putting them into a region or an area where there would be cultural differences that would cause them a problem.Q. Okay. Would you have been involved or been aware of how much the local national deminers were paid under the Logar contract?A. I don't recall. I mean, we do price reviews. I was involved in a lot of price reviews. I can't say I was involved in all of them, but I don't recall.Q. And if the deminers that worked under the Logar contract worked under the task order 26 contract, would you have expected them to be paid roughly the same amount.Ms. Burrows. Object to form.A. I think each contract has its own requirements. I think working for the Corps of Engineers is going to be a lot harder than working for the British government. So you know, there's a lot of things that factor in to what an employee would have been paid, additional security screening requirements, the requirements of the position, the requirements of the work. The contracts are completely different. It would just be like saying, could you go work a divorce case as well as you could work this case.
***
Q. I understand. But the local nationals were just paid a flat, flat rate, correct?A. I mean, they got meal allowances. They got other things. So if they were deployed, sometimes they got, you know, a deployment balance paid to them as well. If an area was more hazardous than another, sometimes they were paid more. It just depended on where it was at. You couldn't go down to Lashkargah and expect people to make the same amount in Helmand province or Lashkargah as you would in Kabul. So people just didn't go to dangerous environments for the same pay, so there were variations in pay.
[Doc. 182-7 pp. 2–3].
Based on the above, it appears that while Defendant did review previous proposals, it also relied on a variety of factors in submitting bids on contracts.[3] Relator alleges that it was Defendant's best practice to review the costs of previous “contracts involving the same or similar work and labor sources” [Doc. 183 p. 9.]. But these requests do not seek what Defendant relied on in submitting the proposals for the Contracts at issue; instead, Relator seeks discovery on “other contracts” or “like services” [Doc. 176-2 pp. 6–8]. Relator states that “he is only seeking comparative rates on the same labor types, from the same labor sources, in the same countries, during the same periods, involving the same work” [Doc. 183 p. 3]. His requests, however, do not seek comparative rates or contracts. And here, as Defendant argues, there is no practical “way to identify what constitutes a ‘comparative rate[,]’ how to determine whether contracts ‘involved the same work’ (especially where each contract has a unique performance work statement), or how to determine whether contracts use the ‘same labor types’ where labor quantities, categories, and requirements varied” [Doc. 184 pp. 3–4]. Given that the terms of the contracts are different, the Court does not find such discovery is relevant.[4]
*9 Even if the other contracts at issue were relevant, the Court finds that they are not proportional to the needs of this case. See Fed. R. Civ. P. 26(b). While the amount in controversy is substantial [see Doc. 112 pp. 97–98], the issues Relator alleges are important, and Defendant appears to have significant resources, the Court finds that the lack of importance of the discovery and the burden significantly outweigh its likely benefit. With respect to the importance of the discovery, as explained above, the contracts not subject to the Complaint do not contain the baseline information Plaintiff seeks. And as Defendant argues, “Every contract that Relator seeks to compare with the ... Contracts will become a separate dispute over the facts, scope, terms, and performance of the contracts, unnecessarily complicating a case already involving twenty-nine contracts” [Doc. 184 p. 4]. In addition, the contracts not included in the allegations are over a decade old, meaning Defendant's access to search for such documents may be limited.[5]
For the reasons explained above, the Court does not find these discovery requests seek relevant information that is proportional to the needs of this case.
D. Second RFP Nos. 2–3, 10-14, 16-18, 19-23, 25–27, 29, 31, 38, and 40
Defendant seeks a protective order relieving it of having to respond to Second RFP Nos. 10–11, 16–17, 19–23, 38 and 40, asserting that “[o]n their face, these requests are not connected to any allegation, claim, or defense here, and thus seek documents beyond the scope of permissible discovery” [Doc. 182 p. 25 (citation omitted)]. In addition, Defendant states that while Second RFP Nos. 2–3, 12–14, 18, 25–27, and 31 “reference facially relevant entities and individuals (e.g., Al Hurea, IST, Emad Raheem), they seek documents well beyond the scope of issues relevant to the parties' claims and defenses” [Id. at 28].
Relator responds that his requests seek relevant information and that Defendant has failed to “adduce[ ] specific facts demonstrating undue burden or disproportionality” [Doc. 183 p. 12].
1. Contracts with Prime Contractors, Second RFP Nos. 10–11, and 19
Relator's discovery requests seek as follows:
10. All documents relating to [Defendant's] cost accounting for work it directly or indirectly performed for Parsons Corporation in Iraq.11. All documents relating to [Defendant's] cost accounting for work it directly or indirectly performed for any other company besides Parsons Corporation in Iraq or Afghanistan from 2003 to 2012.19. All documents and communications exchanged between [Defendant's], on the one hand, and Askar, Cody Schlomer, or Kellen Kayonga, on the other, relating to the Contracts, security guards, and/or costs relating to labor.
[Doc. 182-9 pp. 8–9, 11]. Defendant argues that with respect to Second RFP No. 10, the Complaint does not mention the Parsons Corporation, rendering it irrelevant [Doc. 182 pp. 19-20]. With respect to Second RFP No. 11, Defendant states that it “would cover every [Defendant] cost accounting record relating to any contract in Iraq or Afghanistan over nearly a decade” [Id. at 26]. Second RFP No. 19, according to Defendant, would extend to all contracts not at issue [Id.].
Relator states that Defendant's “contracts under other prime contractors are relevant” [Doc. 183 p. 15]. Claiming that Defendant “primarily performed such work on the captured enemy ammunition (“CEA”) contract,” Relator states that it “involved the same type of work at issue under Contract 18, Task Orders 5 and 6” [Id.]. Relator claims that Defendant “may have relied on an Iraqi citizen, Emad Rahemm, its translator at the time, to source labor” and that “when creating its cost and price proposal for Contract 18, Task Orders 5 and 6, [Defendant] purportedly relied on prior costs incurred for that local national labor to determine its local national labor costs” [Id.]. This is relevant to Defendant's knowledge of its actual cost for Iraqi local national labor prior to its bid for Task Orders 5 and 6 [Id.].
*10 Defendant replies that Relator admits that various prime contractors are not implicated in his allegations and that with respect to the CEA program, Defendant was not a subcontractor but instead the prime contractor.
The Court finds these discovery requests are not relevant or proportional to the needs of this case, primarily for the same reasons explained above, see supra pp. 17–18. With respect to Plaintiff's example of the CEA contract, Defendant represents that it was not the subcontractor for that contract but instead the prime contractor. And Second RFP No. 11 is problematic given that on its face, it seeks every cost accounting recorded related to any contract in Iraq or Afghanistan over nearly a decade. The Court therefore finds Defendant's objections well taken.
2. Defendant's General Knowledge of All Labor Costs in Iraq and Afghanistan, Second RFP Nos. 16–17, 20, 21–23
Relator's discovery requests seek as follows:
16. All documents relating to any local national labor sources that [Defendant] directly or indirectly used to perform government contracts in Iraq or Afghanistan between 2003 and 2012 other than Emad Raheem, Al Hurea, and IST, including, without limitation, IEPC, Falcon Security, Markos Security, Mohammad Zahir, Nazir Ahmad, and Mirza Mohammad.17. All documents relating to the proposed, projected, or actual costs for any other local national labor sources [Defendant] directly or indirectly used to perform government contracts in Iraq or Afghanistan between 2003 and 2012 other than Emad Raheem, Al Hurea, and IST, including, without limitation, IEPC, Falcon Security, Markos Security, Mohammad Zahir, Nazir Ahmad, and Mirza Mohammad.20. All documents relating to any third country national labor sources [Defendant] directly or indirectly used to perform government contracts in Iraq or Afghanistan between 2005 and 2012 other than Askar, including, without limitation, Victory Contracting Establishment.21. Documents relating to [Defendant's] knowledge of Iraqi local national labor costs from 2003 to 2012.22. Documents relating to [Defendant's] knowledge of Afghani local national labor costs from 2008 to 2012.23. Documents relating to [Defendant's] knowledge of third country national labor costs from 2003 to 2012.
[Doc. 182-9 pp. 10–12].
With respect to Second RFP Nos. 21–23, Defendant argues that these “requests implicate literally every document in [its] possession pertaining to work in Iraq or Afghanistan that involved any sort of local labor, regardless of whether that labor is of the type at issue in the [Complaint], whether the underlying contract is in dispute, or whether [Defendant's] labor subcontractor is relevant here” [Doc. 182 p. 26]. Defendant states that “[Second] RFP No. 23 is particularly objectionable” because it seeks documents relating to “costs for work performed in Afghanistan or Iraq irrespective of the country of origin of the laborers or the nature of the work performed” [Id. at 27 (citation omitted)]. Defendant states that there are similar problems with Second RFP Nos. 16, 17, and 20.
Relator responds that it needs this information to establish scienter and falsity [Doc. 183 p. 17]. In addition, Relator states that the discovery requests are also relevant to one of his theories on damages—“what [Defendant] actually paid versus what it billed to the Government on ‘time and materials’ contracts” [Id.]. In his response, Relator makes the following clarifications: (1) “he only seeks this information to the extent the costs relate to the same labor types, sourced from the same or competitive entities, in the same countries, during the same timeframe as the Contracts,” and (2) “as to third-county national labor, he is only seeking information regarding Ugandan third-country national labor” [Id.]. Relator denies that Second RFP Nos. 16, 17 and 20 suffer similar defects, arguing that “[e]ach of these requests seeks [Defendant's] documents concerning local national or third-county national labor providers who furnished security guards, deminers, and/or general laborers on the Contracts” [Id].
*11 Defendant states that Relator's clarifications do “not functionally limit these requests” [Doc. 184 p. 7]. This is because he “does not explain how he would define ‘competitive entities’ or what constitutes the ‘same labor types’ where each contract contains different labor categories, requirements and qualifications” [Id.]. Defendant adds that Relator does not limit the time-period of the requests. With respect to Second RFP Nos. 16, 17, and 20, Defendant states that information regarding other contracts not subject to the Complaint is not relevant.
3. Documents Tracing Expenditures of Contract Funds, Second RFP No. 38
Relator's discovery request seeks, “All documents relating to the repatriation or movement out of Iraqi or Afghanization [sic] of U.S. Contract dollars paid to [Defendant] in Iraq or Afghanistan” [Doc. 182-9 p. 14]. Defendant states that “[w]here or how [it] or its subcontractors spent funds paid out on any government contracts (not just those at issue here) performed in Iraq has no bearing on Relator's fraud theories” [Doc. 182 p. 7]. According to Defendant, this is not an asset-tracing and recovery case [Id.].
Relator clarifies that “repatriation and movement out” means “the domestic return of misappropriated cash by [Defendant] that was meant for [its] subcontractors and their ‘employees’ ” [Doc. 183 p. 18]. According to Relator, Defendant “grossly overbilled for subcontracted labor and pocketed the difference in ill-gotten gains” and because “[t]he Iraqi banking system was nonexistent and did not support electronic payments[,]” Relator states, “[t]he Government paid [Defendant] in cash to cover amounts earmarked for subcontracted labor costs” [Id.]. Citing to the testimony of Bruce Bowland, Relator states that Defendant's “deponents have described the rampant misuse of the Government's cash payments to [it] in Iraq” [Id. at 18-19 (citation omitted)]. Relator therefore concludes that “[d]ocuments relating to the repatriation of misappropriated cash would demonstrate that [Defendant's] subcontractors did not, in fact, receive the money” and that Defendant “fraudulently profited” [Id.].
Defendant replies that Relator's clarification does not help and is problematic for several reasons. First, Defendant states that it “has no way to search for or identify documents reflecting ‘domestic return of misappropriated cash,’ nor does Relator explain what documents might reflect his new ‘repatriation theory’ ” [Doc. 184 p. 9]. Second, Defendant states that the request shows Relator's “fundamental misunderstanding that ‘the government paid [Defendant] in cash' for subcontractor labor costs” [Id. (emphasis omitted)]. According to Defendant, “[t]he United States established a bank in Iraq's International Zone where contractors could safely withdraw cash from their own accounts in order to participate in Iraq's cash economy” [id. (citation omitted)]. To the extent Relator has cited deposition testimony in support of its theory about Defendant allegedly “absconding with cash,” Defendant states that the witness later acknowledged he was speculating [Id.].
Plaintiff relies on Bruce Bowland's testimony in support of his request. Bruce Bowland testified, “It was a cash-rich environment. It was easy to get high on the casheesh, so they didn't want to give it up, and I was going to make them give it up” [Doc. 184-4 p.2]. When asked if anyone was taking cash, Bowland testified, “I don't know. Do I think it? I mean, you're asking my opinion, and I don't know how that enters into a fact situation” [Id. at 3]. Even so, the Court does not see the relevance of the domestic return of Defendant's alleged misappropriated funds. In other words, what Defendant or its subcontractors did with the money is not relevant to establish Plaintiff's claims in this case. And Defendant has identified an issue regarding how it would attempt to search or identify such documents and further cited evidence that the United States did establish a bank in Iraq [Doc. 184-3 p. 3]. While Defendant acknowledges that it paid its subcontractors in cash [see id. Doc. 184 p. 9 n. 8], Plaintiff has not shown why he needs documents reflecting repatriation or movement of the cash.[6] The Court therefore finds Defendant's objection well taken.
4. Acquisition Documents, Second RFP No. 40
*12 This discovery requests seeks:
40. All documents and communications exchanged between [Defendant], on the one hand, and any potential buyer, merger partner, or investor, on the other, relating to the Contracts, the Action, the Investigation, or the facts, circumstances, or allegations raised in the Complaint, including, without limitation, investor solicitations and documents submitted as part of due diligence.
[Doc. 182-9 p. 14].
Defendant disputes the relevancy of this request stating that Relator's claims “do not turn on how [Defendant] or any potential buyers may have evaluated Relator's allegations or litigation risk during the due diligence phase of an acquisition” [Doc. 182 p. 27].
According to Relator, “he requires discovery into what the acquiring entities knew or should have known, and when, in order to analyze potential liability on any judgment entered” [Doc. 183 p. 19]. In addition, Realtor states that such discovery is relevant to whether Defendant spoliated documents. And because he is seeking punitive damages, Relator states that “he is entitled to discover documents relevant to [Defendant's] financial condition” [Id. at 20]. Therefore, whether Defendant “has sold off company assets to avoid a judgment would be relevant to [Defendant's] financial condition” [Id.].
Defendant replies that any potential liability “does not depend on how [it] or its potential buyers viewed litigation risk or Relator's allegations during an acquisition” [Doc. 184 p. 10]. In addition, Defendant states that Relator has never alleged that it fraudulently disposed of assets to avoid a judgment. With respect to Relator's spoliation argument, Defendant states that he has mischaracterized the facts.
The Court finds Second RFP No. 40 does not seek relevant information. See Fed. R. Civ. P. 26(b)(2). Defendant's possible liability is not dependent on how its potential buyers viewed litigation risk. And there are no allegations that Defendant is fraudulently disposing of its assets to avoid a potential judgment. With respect to Relator's spoliation argument, the Court has addressed it above, see supra note 5.
5. External and Internal Communications, Second RFP Nos. 2 and 3
These discovery requests seek:
2. All communications between [Defendant] and the Government or any nonparty concerning Relator Patrick Griffis, this Action, the Investigation, the facts or allegations of the Complaint, or any defense asserted by [Defendant].[7]3. All internal [Defendant] communications concerning Relator Patrick Griffis, this Action, the Investigation, the facts or allegations of the Complaint, or any defense asserted by [Defendant].
[Doc. 182-9 p. 7].
Defendant states that its “proposed search terms would capture any relevant documents on these same topics” [Doc. 182 p. 28]. Relator responds that Defendant does not explain its objection and that it has served similar requests on him [Doc. 183 pp. 20–21]. Relator argues that these requests “are appropriate when followed by a set of narrowly crafted search terms, as [he] has done here” [Id. at 21]. The thirty email addresses are “affiliated with purported or actual subcontractors” [Id.]. Relator disputes Defendant's contention that it has proposed search terms that would capture the documents.
*13 Defendant replies that these requests “far exceed the scope of permissible discovery” and that “[t]hey are not tailored to return relevant information, nor are they proportional to the needs of this case” [Doc. 184 pp. 7–8]. Defendant states that “[t]hey are akin to positing a request for ‘all documents that could have any connection to any part of this case’ ” [Id. at 8]. Calling them duplicative of Relator's First Discovery Requests, Defendant states that its search terms already cover these discovery requests.
The Court finds appropriate search terms will alleviate Defendant's concerns regarding relevancy and proportionality. As explained above, the parties are continuing to work on search terms. The Court therefore denies as moot Defendant's request as it pertains to these discovery issues and directs the parties to continue to meet and confer to resolve the disputes regarding search terms.
6. Documents Involving Emad Raheem, IST, and Askar, Second RFP Nos. 12, 13, 14, and 18
These discovery requests seek:
12. All documents relating to Emad Raheem, including, without limitation, communications between [Defendant] and Emad Raheem.13. All documents relating to Al Hurea, including, without limitation, communications, master service agreements, mutual exclusivity agreements, statements of work, scopes of work, performance work statements, work authorizations, subcontractor agreements, employment agreements, independent contractor agreements, budgets, budget proformas, finance procedures, cost accounting records, formulas or data, Costpoint legacy data, Hummingbird legacy data, purchase order requests, purchase orders, invoices, vouchers, receipts, check scans, deposit slips, wire authorizations, wire confirmations, accounts receivable records, accounts payable records, cash logs, disbursement logs, tracking matrices, weekly reports, payroll records, payroll reports, payroll rosters, payroll summaries, monthly pay release sheets with worker signatures, bank account statements, general ledgers, contract ledgers, time sheets, time cards, electronic time sheet system data, labor force backups, field logs, monthly logs, daily logs, and summary reports.
[Doc. 182-9 p. 9]. Second RFP Nos. 14 and 18 are the same as Second RFP No. 13, except Second RFP No. 14 seeks documents relating to IST, and Second RFP No. 18 seeks documents relating to Askar [Id. at 9–10].
Defendant argues that these RFPs do not include any limitations, and with respect to Second RFP No. 12, “Mr. Raheem provided different services to [Defendant] throughout Iraq for many years, and therefore would have communicated with [Defendant] about different projects unrelated to the” contracts at issue here [Doc. 182 p. 29].
Relator asserts that “[d]ocuments concerning these individuals and entities are per se highly relevant as they would tend to show that [Defendant] knew or should have known about these individuals', their companies', and their workforces' true nature, capabilities, and actual labor prices” [Doc. 183 p. 25]. Relator points to his instructions stating that he limited his requests to documents from 2003–2023 [Id.]. He also identifies Emad Raheem, IST, and Askars as “subcontractors” and provides further guidance in his instructions [See Doc. 182-9 p. 4, Instruction N]. Relator agrees “to further limit the scope of these requests to exclude ‘work’ that did not involve supplying local national or third-country national labor” [Id.].
While the individuals and entities named in these requests are subject to the allegations in the Complaint, the Court finds that these discovery requests are impermissible in scope given that they do not contain any limitations. Relator references Instruction N, which states:
*14 The phrase “[a]ll documents relating to,” with respect to a Subcontractor, means to produce all documents relating to [Defendant's] business relationship with the Subcontractor; work the Subcontractor performed for or on behalf of [Defendant]; work [Defendant] performed for or on behalf of the Subcontractor; work any former [Defendant] employee, including, without limitation, Eric Barton or Steve Barton, performed for or on behalf of the Subcontractor; any request by the Subcontractor to [Defendant] or the Government for payment; any payment the Subcontractor received from [Defendant] or the Government; the Subcontractor directly or indirectly providing local national labor or third country national labor to [Defendant]; the proposed, projected or actual cost for local national labor or third country national labor directly or indirectly provided by the Subcontractor; and any cost accounting for the proposed, projected, or actual cost for local national labor or third country national labor directly or indirectly provided by the Subcontractor.
[Doc. 182-9 p. 4]. Instruction N does not properly limit the scope of these discovery requests to obtain relevant information. The Court finds Defendant's objection well taken.[8]
7. Contract Requirements, Second RFP No. 25–27, 29, and 31
Relator's discovery requests seek:
25. All documents relating to any Contractual terms, performance standards, or specifications from the Government.26. All documents reflecting [Defendant's] understanding or interpretation of the Contractual terms, performance standards, or specifications.27. All communications between [Defendant] and the Government concerning the Contracts' terms, performance standards, or specifications.29. All documents [Defendant] relied upon to develop bids or proposals for the Contracts, including, without limitation, the proposal file for each Contract, any written procedures for proposal development or the proposal review processes, and any compliance checklists.31. All documents relating to any negotiations between [Defendant] and the Government concerning the Contracts.
[Doc. 182-9 pp. 12–13].
Defendant claims that Second RFP Nos. 25–27 “reach[ ] contract requirements that are not in dispute or the subject of the [Complaint]” and that Second RFP No. 31 “would include communications covering irrelevant issues like administrative or time extension negotiations” [Doc. 182 p. 29]. With respect to Second RFP No. 29, Defendant asserts that it is similarly defective.
Relator responds that Defendant “does not dispute that these requests seek relevant information[ ]” but instead, it has objected “to producing terms, standards, or solicitations that are not in dispute (e.g., ‘weapons specifications, and housing requirements’)” [Doc. 183 p. 26]. This partial objection, Relator states, “does not reprieve [Defendant] from responding with responsive, non-objectionable documents” [Id.]. Relator states that Defendant also partially objected to Second RFP No. 31, but “this request would show or tend to show the Government's priorities with respect to the Contract award, and whether it directly communicated these to [Defendant] as part of the bidding process” [Id. at 27]. With respect to Second RFP No. 29, Relator states that Defendant does not explain its objection, which is fatal to its request for a protective order [Id. at 27-28].
The Court finds that these discovery requests seek relevant information as they are limited to the Contracts at issue in this case. With respect to Defendant's partial objections (e.g., producing information that is not in dispute or producing communications between it and the Government regarding extensions of time), the Court ORDERS the parties to meet and confer on these partial objections and specifically discuss whether Plaintiff needs such evidence to establish his claims.
E. Joint Position Statement
*15 As noted above, the parties submitted their respective positions on Relator's Second Requests for Production. It appears to the Court that many of the rulings above will obviate the need to make other rulings with respect to Relator's Second RFPs. The Court, however, DIRECTS the parties to submit to Chambers a status report regarding any remaining disputes on or before December 29, 2023.
IV. CONCLUSION
For the reasons explained above, the Court DENIES Relator's First Motion to Compel [Doc. 176] and GRANTS IN PART AND DENIES IN PART Defendant's Cross-Motion for Protective Order [Doc. 182].
IT IS SO ORDERED.
Footnotes
Both parties detail the back-and-forth proposals regarding the ESI searches. While the Court has reviewed the parties' exchanges, the Court does not need to summarize them herein.
The parties do not explain what “CMC” means, but it appears to mean “Coalition Munitions Clearance” [See Doc. 176-10 p. 5]
For instance, when Matthew Kaye testified about the difference rates under the TWISS contract and the Rusafa contract given that the proposals were submitted a few days apart, he testified, “[T]hey're two different contracts. Two different requirements” [Doc. 182-6 p. 2].
And the Court finds that the cases Relator relies on inapposite from this matter. See United States ex rel. USN4U, LLC v. Wolf Creek Fed. Servs., Inc., 34 F.4th 507, 515–16 (6th Cir. 2022) (finding that the plaintiff has sufficiently pleaded the scienter requirement because he had a recorded conversation where the defendant's employees discussed their knowledge of inflated cost estimates); Allgood v. Baptist Mem'l Med. Grp., Inc., No. 19-2323-JTF-TMP, 2020 WL 86455, at *4 (W.D. Tenn. Jan. 7, 2020) (granting relator's motion to compel discovery request seeking information about a comparator employee, stating “[e]vidence of an employer's treatment of other employees is often relevant to an employer's motive in acting against a plaintiff” (citation omitted)), aff'd, No. 219CV02323SHMTMP, 2020 WL 821381 (W.D. Tenn. Feb. 19, 2020).
With respect to Defendant's access to the information, it states that it has “no reason to believe that these decades-old documents even exist where [it] had no reason to preserve them” [Doc. 184 p. 4]. Relator states that the Government had a litigation hold and that in light of Defendant's acknowledgment that it may have destroyed documents, he may have to file a spoliation motion [Doc. 183 p. 11 n. 48]. There is no basis at this time to find that Defendant spoliated evidence.
In the Joint Position Statement, Relator states that the phrase “repatriation and movement out of” is derived from Defendant's IST's business plan, which includes a section called “Banking and Repatriation of Revenue” [Joint Position Statement p. 53]. But Defendant states that “[t]o the extent Relator is seeking information about incoming and outgoing wire transfers, cash withdrawals, and chase dispersals for the [Contracts],” it has “produced and continues to review and produce documents relating to ‘cash logs,’ wire transfers related to the [Contracts], [Defendant's] payments to Subcontractors performing under the [Contracts], and “communications related to these transactions” [Id. at 54].
This RFP includes thirty custodians [Doc. 182-9 p. 7].
According to Relator, Emad Raheem is the purported owner and president of Al Hurea and IST [Doc. 112 ¶ 111]. In the parties' Joint Position Statement, they argue that they have each proposed a set of workable search terms [Joint Position Statement pp. 16–25, 29–33]. The Court encourages the parties to work together to narrow these discovery requests and to agree upon a set of appropriate search terms.