Oneida, Ltd. v. United States

43 Fed. Cl. 611, 83 A.F.T.R.2d (RIA) 2346, 1999 U.S. Claims LEXIS 96, 1999 WL 285578
CourtUnited States Court of Federal Claims
DecidedMay 6, 1999
DocketNo. 97-62T
StatusPublished
Cited by3 cases

This text of 43 Fed. Cl. 611 (Oneida, Ltd. 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
Oneida, Ltd. v. United States, 43 Fed. Cl. 611, 83 A.F.T.R.2d (RIA) 2346, 1999 U.S. Claims LEXIS 96, 1999 WL 285578 (uscfc 1999).

Opinion

ORDER

ALLEGRA, Judge.

Plaintiff, Oneida, Ltd. & Subsidiaries, filed this tax refund suit on January 30, 1997, seeking a refund of taxes and interest allegedly overpaid for tax years 1988 and 1989. At issue is defendant’s motion to compel the production of certain documents that were requested, via subpoena and otherwise, from plaintiffs testifying expert witnesses. Plaintiff claims that the documents are protected from production by the work product doctrine. Defendant argues that the work product doctrine does not apply to the subject documents and even if it did, plaintiff waived the doctrine by failing to raise such objections on a timely basis.

I. Facts

The facts giving rise to this discovery dispute are as follows: By order dated October 9, 1997, the parties were to complete discovery by March 31, 1998. The court extended this deadline to August 28,1998, upon motion of defendant. In July 1998, after notifying plaintiffs counsel that it wished to depose plaintiffs witnesses, defendant issued subpoenas duces tecum to a number of plaintiffs witnesses, including three of plaintiffs testifying experts — Carol J. Mitten, Gregory S. Heebink and Alan D. Hand. In August, after scheduling problems were encountered, the parties agreed to schedule nine depositions, including those of the plaintiffs testifying experts, in early September, ie., after the August 28th discovery deadline.

On August 27, 1998, defendant filed a motion to enlarge the discovery period to November 26, 1998. In its motion, defendant advised that the case had been reassigned and that additional time was necessary for new counsel to become familiar with the case, to reschedule the nine depositions previously scheduled, to obtain and review previously requested documents which had yet to be produced, and to conduct any further discovery deemed necessary. Plaintiff objected to defendant’s request for enlargement, arguing it was too open-ended. After a status conference, the court, by order dated October 22, 1998, granted defendant’s motion for enlargement of time until November 26, 1998, “to allow defendant’s new counsel time to become familiar with the case and to conduct ... limited discovery [including] [d]efen-dant’s taking of the nine previously-scheduled depositions.”

Pursuant to the court’s order, defendant rescheduled the depositions of plaintiffs five expert witnesses. On October 30, 1998, defendant reissued a subpoena duces tecum to Ms. Mitten, which required her to produce certain documents on November 10, 1998, and to appear for a deposition on November 12, 1998. On November 5, 1998, defendant issued a subpoena duces tecum to expert G. Richard Kelley, which required him to produce certain documents on November 12, 1998, and to appear for a deposition on November 20, 1998. On November 18, 1998, defendant reissued a subpoena duces tecum to Mr. Heebink, which required him to produce certain documents and appear for a deposition on November 23, 1998. Each of these subpoenas was on a form supplied by the court, on the back of which is the full text of RCFC 45(c), which sets forth the time period for making written objections to documents requested by such a subpoena, ie., “within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service.” RCFC 45(c)(2)(b). In lieu of reissuing a subpoena, on November 13, 1998, defendant sent a letter and notice of deposition to Mr. Hand for a November 23, 1998, deposition.1 The letter included a request for documents to be produced at the deposition and asked that if Mr. Hand “[did] not intend to comply [614]*614with [the] document request, please advise as soon as possible.” Plaintiff received timely notice of all four expert depositions.2

Ms. Mitten produced documents on November 10, 1998, as required by her subpoena. She appeared for the November 12th deposition as scheduled and testified that she sent documents responsive to the subpoena duces tecum to plaintiffs counsel, who then sent them back to her, and then she produced them to defendant. Ms. Mitten further testified at the deposition that she did not know whether plaintiffs counsel had withheld any of the documents that she had sent him. In response, defendant’s counsel stated, “I don’t know of any grounds for withholding any documents. Therefore, I would ask you to find out if any were withheld, identify them as being withheld, and state the grounds why they were withheld.” Plaintiffs counsel, who was present at Ms. Mitten’s deposition, made no comments in response to this exchange. Further, at no time prior to the deposition did the witness or plaintiffs counsel object in writing to the request for documents in Ms. Mitten’s subpoena duces tecum. Nor did plaintiffs counsel disclose prior to or at the deposition that he had withheld any of the documents sent to him by the expert witness.

Mr. Kelley did not produce documents on November 12, 1998, as required by his subpoena. Rather, Mr. Kelley sent the documents he had gathered to plaintiffs counsel, who then produced the documents on November 17, 1998. Mr. Kelley’s deposition took place on November 20th, as scheduled. During the deposition, Mr. Kelley testified that all documents responsive to the subpoena requests had been produced. At no time prior to the deposition did the witness or plaintiffs counsel object in writing to the request for documents in Mr. Kelley’s subpoena duces tecum. Nor did plaintiffs counsel disclose prior to or at the deposition that he had withheld any of the documents sent to him by the expert witness.

Mr. Heebink produced documents at his November 23rd deposition as required by his subpoena. Like Ms. Mitten and Mr. Kelley, Mr. Heebink had sent the documents he deemed responsive to the subpoena to plaintiffs counsel, who then returned them to Mr. Heebink. At the deposition, Mr. Heebink testified that plaintiffs counsel had withheld certain documents which Mr. Heebink had provided to him. When asked, Mr. Heebink could not identify which documents had been withheld. Plaintiffs counsel stated that he had withheld documents that were protected by the attorney-client privilege and work product doctrine. At the request of counsel for defendant, plaintiffs counsel agreed to provide a detailed description of the withheld documents. However, at no time prior to the deposition did the witness or plaintiffs counsel object in writing to the request for documents in Mr. Heebink’s subpoena duces tecum. Nor did plaintiffs counsel disclose prior to the deposition that he had withheld any of the documents sent to him by the expert witness.

Mr. Hand produced documents at his November 23rd deposition as requested by the November 13th letter from defendant’s counsel. At no time prior to the deposition did he or plaintiffs counsel object in writing to the request for documents in the November 13th letter to Mr. Hand. Nor did plaintiffs counsel disclose prior to or at the deposition that he had withheld any of the documents identified by the expert witness.

On December 7, 1998, counsel for defendant sent a letter to counsel for plaintiff requesting a list of any documents withheld from the documents requested from the five testifying expert witnesses.

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43 Fed. Cl. 611, 83 A.F.T.R.2d (RIA) 2346, 1999 U.S. Claims LEXIS 96, 1999 WL 285578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneida-ltd-v-united-states-uscfc-1999.