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United States of America v. Kellogg Brown & Root Services

September 12, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge


Before the Court is plaintiff's Motion for a Protective Order Regarding KBR's Untimely Rule 30(b)(6) Notice, May 25, 2012, ECF No. 98. Upon consideration of the motion, the opposition and reply thereto, and the record herein, the Court will deny the plaintiff's Motion for a Protective Order.


This case concerns a contract dispute between plaintiff United States and defendant KBR (formerly doing business as "Kellogg Brown & Root Services, Inc."). In 2001, at the beginning of American military action in Iraq, the United States awarded a large logistical services contract to KBR, known as "LOGCAP III." Under LOGCAP III, KBR provided various services-such as supplying food-to American troops stationed in Iraq. In executing LOGCAP III, KBR and its subcontractors allegedly hired armed private security companies ("PSC") to afford additional protection. The United States contends that KBR then passed on the costs of these PSCs to the United States by including those charges in its invoices. The Government*fn1 claims, under the terms of LOGCAP III, that KBR could not pass on these costs. See Compl. ¶¶ 7--12, Apr. 1, 2010, ECF No. 1. The United States argues that the contract stipulates that all force protection be provided by the U.S. Military, LOGCAP III, ¶ H-16 at 98, and that KBR could not arm any of its personnel without seeking the permission of Theater Commander. Id. at ¶ H-21, at 101.*fn2

The United States brought suit in this Court on April 1, 2010. In its complaint, the Government alleged a violation of the False Claims Act, breach of contract, unjust enrichment, and payment by mistake. Compl. ¶¶ 33--43. In August 2011, this Court dismissed the unjust enrichment and payment by mistake causes of action, but did not dismiss the False Claims Act or breach of contract claims. U.S. v. Kellogg Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 161 (D.D.C. 2011). Thereafter the parties submitted proposed discovery and trial plans; on October 5, 2011, the Court entered a Scheduling Order to govern discovery in this action. ECF No. 65. This Scheduling Order established a fact discovery period commencing on October 30, 2011 and concluding on May 1, 2012. Id.

This period of discovery was not without disputes. On February 9, 2012, KBR brought a Motion to Compel discovery against the United States, seeking discovery on force protection matters and more detailed interrogatory answers. Def.'s Mot. to Compel Discovery, Feb. 9, 2012, ECF No. 75. Recently this Court ruled on that motion, denying in part KBR's motion. U.S. v. Kellogg, Brown & Root Servs., Inc., __ F. Supp. 2d __, 2012 WL 3776708 (D.D.C. Aug. 31, 2012) (ECF Nos. 116, 117). The Court denied KBR's request for "documents and information relating to its contracts and interactions with other prime contractors in Iraq that relate to armed private security" and other matters beyond the parties' obligations under LOGCAP III. Id. at *3, *17--*18. The Court found that KBR is entitled to discovery relating to the United States' obligations under LOGCAP III to provide force protection to KBR and its subsidiaries. Id. at *17--*18. It ordered the parties to meet and confer to discuss the proper scope and schedule for this additional discovery, and report to the Court within 30 days. Id. These negotiations are ongoing.


The Court has the power to issue a protective order under Federal Rule of Civil Procedure 26(c):

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]

F.R.C.P. 26(c). Powers of the Court include "forbidding the disclosure or discovery; specifying terms, including time and place, for the disclosure or discovery;" and "forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery into certain matters[.]" Id. (original formatting omitted). The party requesting the protective order bears the burden of showing the good cause contemplated by the Rule. Alexander v. F.B.I., 186 F.R.D. 71, 75 (D.D.C. 1998) (Lamberth, J.). In most cases, "the party requesting a protective order must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one." Id. The moving party "has a heavy burden of showing 'extraordinary circumstances' based on 'specific facts' that would justify an order." Prozina Shipping Co., Ltd. v. Thirty-Four Automobiles, 179 F.R.D. 41, 48 (D. Mass. 1998). The showing required under Rule 26(c) must be sufficient to overcome the other party's legitimate and important interests in trial preparation. See Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) ("[T]rial preparation and defense.are important interests, and great care must be taken to avoid their unnecessary infringement.").

Courts have been hesitant to issue protective orders that would completely prohibit the taking of a deposition. See, e.g., Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.1979) ("It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error."); Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130, 132 (S.D.N.Y. 1997) ("[I]t is exceedingly difficult to demonstrate an appropriate basis for an order barring the taking of a deposition."); Bucher v. Richardson Hospital Auth., 160 F.R.D. 88, 92 (N.D. Tex. 1994) (stating that protective orders prohibiting depositions are "rarely granted" and then only if the movant shows a "particular and compelling need" for such an order); Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa 1993) ("Protective orders prohibiting depositions are rarely granted."); Rolscreen Co. v. Pella Products of St. Louis, Inc., 145 F.R.D., 92 96 (S.D. Iowa 1992) ("Protective orders which totally prohibit the deposition of an individual are rarely granted absent extraordinary circumstances."); Motsinger v. Flynt, 119 F.R.D. 373, 378 (M.D.N.C. 1988) ("Absent a strong showing of good cause and extraordinary circumstances, a court should not prohibit altogether the taking of a deposition.").

On the other hand, Courts have been more welcoming of protective orders against untimely discovery notices. In an opinion granting a protective order against an untimely Rule 45 subpoena duces tecum, Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95 (D.D.C. 2005), Judge Kollar-Kotelly explained the importance of following the deadlines contained in a Court's scheduling order:

A Scheduling Order is "intended to serve as 'the unalterable road map (absent good cause) for the remainder of the case.'" Olgyay v. Soc. for Envtl. Graphic Design, Inc., 169 F.R.D. 219, 220 (D.D.C. 1996) (quoting Final Report of the Civil Justice Reform Act Advisory Group of the United States District Court for the District of Columbia at 39 (Aug. 1993)). "A scheduling order 'is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.'" Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quoting Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). Indeed, "[d]isregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of litigation, and reward the indolent and the cavalier." Id. As such, Rule 16 of the Federal Rules of Civil Procedure makes plain that a scheduling order entered by a district judge "shall not be modified except upon a showing of good cause and by leave of the district judge...." Fed.R.Civ.P. 16(b); see ...

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