Alaska Pulp Corp. v. United States

44 Fed. Cl. 669, 1999 WL 722345
CourtUnited States Court of Federal Claims
DecidedJune 25, 1999
DocketNo. 95-153C
StatusPublished
Cited by1 cases

This text of 44 Fed. Cl. 669 (Alaska Pulp Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alaska Pulp Corp. v. United States, 44 Fed. Cl. 669, 1999 WL 722345 (uscfc 1999).

Opinion

OPINION and ORDER

BASKIR, Judge.

SUMMARY

The Court held a status conference on June 15,1999, reviewing the pending motions in this case. Although the substantive issues addressed by the motions were not argued, the parties offered information to further their respective positions. These motions have been exhaustively briefed. The Court is able to rule on the following outstanding issues without further argument:

I Rule 45: Production of Attorney Work-Product and Waiver of Privilege

• Regarding Plaintiffs Motion for Protective Order, dated February 24, 1999, the Court issues an INTERIM ORDER directing Plaintiff to submit affidavits or counsel declaration describing efforts to [670]*670prevent delivery of privileged documents.

II Stay of Discovery: Plaintiffs “Political Conspiracy Theory ”

• Defendant’s Motion for Reconsideration, dated June 15,1999, is DENIED.

III Protective Order: Third Party Subpoenas Duces Tecum and Restrictions on Inter-Agency Sharing of Information

• Defendant’s Motion to Compel, dated March 5, 1999, is GRANTED IN PART AND DENIED IN PART.
• Plaintiffs Cross-Motion for Protective Order, dated March 19, 1999, is GRANTED IN PART AND DENIED IN PART.
• Industrial Bank of Japan’s Cross-Motion for Protective Order, dated April 15, 1999, is GRANTED IN PART AND DENIED IN PART.
• Rollo Pool’s Cross-Motion for Protective Order, dated May 20, 1999, is GRANTED IN PART AND DENIED IN PART.
• PricewaterhouseCoopers’ Cross-Motion for Protective Order, dated April 9, 1999, is GRANTED IN PART AND DENIED IN PART.

IV Summary Judgment Briefing: Defendant’s Requests for Enlargements of Time

• Defendant’s Motion for Reconsideration of the Case Management Schedule (March 16,1999) is DENIED.
• Defendant’s Motion (June 10, 1999) for an Enlargement of Time Within Which to File its Reply to Plaintiffs Opposition and its Opposition to Plaintiffs Cross-Motion for Partial Summary Judgment (Contract Requirement of Primary Manufacture and Pulp Mill Operations) is DENIED.
• Defendant’s Motion (June 10, 1999) for an Enlargement of Time Within Which to File it’s Reply to Plaintiffs Motion for Summary Judgment (Tongass Timber Relief Act Constitutes Breach of Contract) is DENIED.

V Motion to Compel Privilege Logs: Defendant’s Requests for Enlargements of Time

• Defendant’s Alternative Motion (June 7, 1999) for an Enlargement of Time Within Which to File Its Opposition to APC’s Motion to Compel and to Produce All of Defendant’s Documents and Associated Privilege Logs is hereby DENIED.
• Defendant’s Motion (June 7, 1999) for an Enlargement of Time Within Which to Produce Privileged Logs is hereby DENIED.
• Defendant’s Alternative Motion (June 7, 1999) for an Enlargement of Time to Produce All of the Government’s Documents is DENIED.
• Plaintiffs Unopposed Motion (June 24, 1999) to Suspend for one week (until July 2, 1999) the Briefing Schedule on its Motion to Compel Privilege Logs is GRANTED.

MOTIONS

I, Rule 45: Production of Attorney Work-Product and Waiver of Privilege

During the months of November-December 1998 and January 1999,. the Defendant issued a series of subpoenas duces tecum to a number of third parties. The Plaintiff asserts it first became aware of some of these subpoenas in January 1999. It contended, first to the Defendant informally, and then in formal papers filed in Court, that nine of these subpoenas had been issued without notice to the Plaintiff, as required by Rule 45. The matter was exhaustively briefed, and the parties made further observations about their positions during the Status Conference on June 15, 1999. The Plaintiff sought a Protective Order as to documents delivered under subpoena to CH2M Hill Corporation (Hill), and in that regard, only as to a limited number of documents for which the Plaintiff claims attorney work product privilege. In order to preserve the status quo, the Court on May 21, 1999, directed the Defendant’s counsel to collect all copies of the contested [671]*671documents previously delivered and place them physically in safekeeping.

In its filings, the Plaintiff submitted affidavits showing that its mail room keeps logs on all documents it receives. A search of the logs revealed no entries for the nine contested subpoenas. In response, the Defendant, upon direction of the Court, submitted affidavits describing its office procedure for Rule 45 notices. When a subpoena is to be served, the Defendant’s counsel sends an instruction letter to the appropriate U.S. Marshal’s office. The letters for the nine third party subpoenas each contain a notation at the bottom: “cc Terrence O’Donnell,” Plaintiffs counsel. Defendant counsel’s practice was then to instruct either her secretary or paralegal to prepare copies of the subpoena papers and send them to Plaintiffs counsel, either by hand or by mail. Defendant’s counsel could not determine whether the copies had been actually prepared and delivered (and whether by hand or by mail) to Plaintiffs counsel in these nine instances.

While there may be a presumption that the U.S. Mail delivers materials entrusted to its care, the Defendant has not shown that copies of these subpoenas were placed in the mail. The only specific thing the Defendant can show is that the instruction letter to the U.S. Marshal’s office had a “cc” notation. The Government cannot show that copies actually were made or directed to Plaintiffs counsel. It is also insufficient, as Defendant seems to assert, that an officer of the client chanced to learn of the Hill subpoena from an officer of Hill a day or so before the documents were sent to the Defendant. Accidental knowledge of the client does not satisfy Rule 45’s requirement that a party’s attorney give formal notice to the other party’s counsel.

Defendant’s submission shows nothing more than the regular office procedure no doubt followed by many legal offices. It does not show that Defendant’s standard operating procedure was actually followed in these nine instances. Accidents happen, and it appears that was the case here. On the other hand, Plaintiffs showing is about all one could reasonably expect in an effort to prove a negative. We thus conclude that Defendant failed to give notice to Plaintiff in these nine instances.

Since the Plaintiff claims prejudice only as regards the Hill documents, and then only some of them, no remedy is sought for the balance. Nonetheless, the Court and not the parties is the ultimate guardian of the Court’s Rules. Were this a matter of more than apparent inadvertence, action to vindicate the Rules would be in order, irrespective of a party’s prejudice. The Court is pleased that Defendant has wisely altered its practices to ensure against errors of this kind in the future.

Plaintiff seeks return of the claimed attorney-work product documents submitted by Hill.

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Related

Alaska Pulp Corp. v. United States
59 Fed. Cl. 400 (Federal Claims, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
44 Fed. Cl. 669, 1999 WL 722345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alaska-pulp-corp-v-united-states-uscfc-1999.