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Court Denies Plaintiff’s Request to Depose Agency Attorneys to Replace Lost ESI

Posted on October 2nd, 2017

In Agility Pub. Warehousing Co. v. U.S. Dep’t of Def., Civ. No. 16-448 (D.C. Cir. March 3, 2017), the United States District Court for the District of Columbia denied sanctions for a government agency’s failure to preserve and produce emails and denied Plaintiff’s request to depose the Agency’s attorneys as a way to “replace” the lost ESI. This case arises out of two document requests submitted to the Defense Logistics Agency (”DLA”), a Department of Defense contractor, by plaintiffs Agility Public Warehousing and its affiliates (collectively, “Agility”), government contractors currently embroiled in a long-running defamation case in Pennsylvania brought by Agility’s rival, Kuwait & Gulf Link Transport Co. (“KGL”).

Agility requested depositions of three attorneys from DLA. DLA denied these requests, and Agility filed this case shortly afterward to challenge the denial under the Administrative Procedure Act (“APA”). Currently before the court is the government’s motion for summary judgment and Plaintiffs’ cross-motion for summary judgment on the APA challenge. Agility has also filed two motions to supplement the administrative record.

The state court litigation underlying this case arose out of two emails sent to the government in 2011, signed by someone named “Scott Wilson,” alleging that Agility’s rival contractor, KGL, had illicit ties to Iran, which would have rendered KGL ineligible to serve as a government contractor. The emails, known as the Wilson letters, were referred for investigation by DLA attorneys to the Defense Criminal Investigative Service (“DCIS”), and eventually traced back to Agility. Based on the information contained in the document production from a previous case, Agility sought to depose two DLA counsel, whom Agility concluded were also involved in the previous litigation because they had participated in DLA’s response to the Wilson letters. The parties exchanged a series of letters regarding the request, with the government contending that the request was premature, was not sufficiently specific, and likely implicated privileged information.

In a sixteen-page denial letter, the government found that Agility had failed to show that the attorneys requested had knowledge relevant to material issues in the underlying litigation or that the testimony would not be redundant the information that DLA had already provided. DLA also stated that the breadth of the proposals posed a high risk of exposing information protected by attorney-client privilege, law-enforcement privilege, and that the request was disproportionate and unduly burdensome given the other information that DLA has provided.

The DOD regulations at issue here provide that official information should generally be made reasonably available for use in Federal and State courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure. The regulations direct officials to consider the following types of factors in granting or denying such a request: whether the request is unduly burdensome or inappropriate; whether disclosure is appropriate under the rules of procedure governing the case in which the request arose; whether the disclosure would violate a statute, executive order, regulation, or directive; whether the disclosure is necessary under the relevant law concerning privilege; whether the disclosure would reveal classified information; and whether disclosure would compromise ongoing enforcement proceedings or constitutional rights, reveal the identity of an intelligence source, disclose trade secrets, or otherwise be inappropriate.

Agility claimed the government’s denial of its deposition requests was arbitrary and capricious because the information it seeks is relevant, that the government’s privilege claims are unsupported by applicable law, that Agility’s requests are not unreasonable and that the government’s decision is arbitrary because it is treating Agility and KGL differently. The government stated that testimony on these topics would be cumulative, which appears to be supported by the administrative record. Agility has offered no arguments to the contrary, except to maintain that the information it seeks is “relevant.” Agility offers little argument about the relevance of the litigation-related requests in particular.

Agility claims the government’s denials of its deposition requests are arbitrary and capricious because the government improperly asserted attorney-client privilege. The court disagrees, finding the decision to deny the deposition requests was reasonable and supported by the rest of the analysis. Regarding proportionality, the government has already provided a great deal of information to Agility—some 15,000 pages of documents. The government has based its denial decisions on multiple factors articulated in DOD’s regulations, and ultimately concluded that the balance of these factors weighs against allowing the depositions. The court grants the government’s motion for summary judgment.

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