UNITED STATES CLAIMS COURT
INTERNATIONAL GRAPHICS,
DIVISION OF MOORE BUSINESS FORMS, INC.,
Plaintiff
and
JEFFRIES BANKNOTE COMPANY,
Intervenor
v.
THE UNITED STATES,
Defendant
No. 586-83C
3 Cl. Ct. 715
Robert D. Wallick, Washington, D.C., attorney of record for
plaintiff.
Steptoe & Johnson, of counsel.
William Dickey, Washington, D.C., attorney of record for
intervenor.
Stephen Bergenholtz, Washington, D.C., with whom was Assistant
Attorney General J. Paul McGrath, for defendant.
ORDER
GIBSON, Judge: On October 20, last, this court issued an order
denying plaintiff's RUSCC 34(b) motion for leave to obtain
expedited discovery. Five days thereafter, plaintiff filed a
motion, pursuant to RUSCC 37(a),1 for an order compelling
discovery, in view of defendant's filed objections (October 14,
1983) to said Rule 34(b) motion.
Plaintiff's Rule 37(a) motion seeks an order of this court to
compel discovery as follows:
A. Prior to Thursday, November 3, 1983:
Production of the Technical Proposal of Jeffries Banknote Company
and related documents[; and]
B. During the Calendar Week of November 21, 1983:
(i) Inspection of defendant's Chicago and Washington, D.C.
facilities [and]
(ii) Production of defendant's estimates and cost and production
records.
In its pleading, plaintiff amplifies the phrase in paragraph A,
"and related documents," to embrace:
... all communications or other documents concerning or
mentioning the possibility of Jeffries subcontracting, joint
venturing and/or considering use of the facilities, experience or
personnel of others, in connection with Program 114-S.
Also, with respect to the scope of its paragraph B request,
supra, plaintiff demands the same for the two-year period
beginning October 1, 1981, as follows:
a) Defendant's methods, planning, performing, estimating and
bidding under Program 114-S;
b) Defendant's full cost of producing the Commerce Business Daily
or other materials (including production records) at GPO's
Chicago facility;
c) Defendant's full cost of performing proposed lot #1, editorial
services (including production records); [and]
d) The appropriations (including allocations and allotments),
obligations and expenditures under Program 114-S, by or for (i)
the GPO or (ii) the Department of Commerce.
As grounds for justifying an order of this court to compel
production of the Technical Proposal of Jeffries and related
documents, plaintiff states that such documents are "likely to
include information concerning Jeffries' intent to joint venture
or subcontract portions of the work [required by the
solicitation]," and such data "could be relevant on the question
of Jeffries' responsiveness and therefore relevant to plaintiff's
motion for summary declaratory judgment." Oral argument on said
(plaintiff's) summary declaratory judgment motion has been
requested to be set after November 12, 1983; thus plaintiff's
request for production prior to November 3, apparently, purports
to provide ample time for its review and study of same prior to
the requested date for oral argument thereon.
The court observes that plaintiff fails to allege with
specificity any creditable grounds that would warrant this
court's exercise of its discretion to compel the defendant to
produce the requested documents and allow the requested
inspection at this point in time. While in this connection
plaintiff seeks inspection and production privileges for the
purpose of "examining, inspection [sic] and observing facilities,
processes, recordkeeping and work being performed by defendant at
[the foregoing three facilities in connection with the production
and distribution of the Commerce Business Daily]," it also
proffers no legal basis reflective and supportive of its alleged
entitlement, at this posture. All that plaintiff avers is that
if the pending summary judgment motions2 are not dispositive of
the case, "then an issue is likely to be the extent to which the
government estimates were understated." Such averment falls
woefully short of justifying the invocation of this court's
discretion.
More importantly, plaintiff does not even contend that it will be
substantially and/or irrevocably prejudiced on the merits, should
they be reached, if such discovery is not permitted at this time;
that failure to grant said motion would tend to exacerbate
litigation costs; or that sound discretion requires that its
motion be granted.
In opposition, defendant's memorandum, filed on October 27, 1983,
strenuously resists plaintiff's motion to compel discovery prior
to this court's ruling on its (defendant's) motion for summary
judgment, supra, and further seeks an appropriate protective
order,3 for the following reasons:
(i) it would impose a substantial burden on defendant, at this
posture, for no good purpose;
(ii) plaintiff has not and cannot demonstrate any present need
for the requested discovery;
(iii) the requested discovery would prove no more than the
factual allegations in the complaint which are admitted for
purposes of defendant's pending motion for summary judgment;
(iv) defendant will, if need be, following the court's ruling on
its summary judgment motion, respond to such a motion by
plaintiff within two or three weeks; and
(v) plaintiff should be directed to defer any discovery, if
appropriate, until after this court's ruling on defendant's
motion for summary judgment.
Given the foregoing, the threshold issue here, therefore, is
whether, pending a motion for summary judgment by defendant,
sound discretion compels allowance of such discovery where the
facts, as here, sought to be discovered are admitted for purposes
of said summary judgment and movant (plaintiff) is not now
seeking to ascertain operative facts for purposes of establishing
a genuine issue of material fact in opposition to the summary
judgment.
DISCUSSION
Rule 37(a)(2), United States Claims Court, tracks an identical
rule promulgated as Federal Rules of Civil Procedure, Rule 37(a)
(2), 28 U.S.C. Case law construing the latter makes clear that in
a motion to compel discovery thereunder, which is committed to
the sound discretion of the trial court,4 the courts are obliged
to pay particular attention to the mandate of Rule 1 of the
Federal Rules of Civil Procedure "to secure the just, speedy, and
inexpensive determination of every action."5 In Herbert v. Lando,
441 U.S. 153, 177 (1979), the Supreme Court stated, in
underscoring the significance of Rule 1 in discovery motions,
that:
[T]he discovery provisions, like all of the Federal Rules of
Civil Procedure, are subject to the injunction of Rule 1 that
they "be construed to secure the just, speedy and inexpensive
determination of every action." (Emphasis added.) To this end,
the requirement of Rule 26(b)(1) that the material sought in
discovery be "relevant" should be firmly applied, and the
district courts should not neglect their power to restrict
discovery where "justice requires [protection for] a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense...." Rule 26(c). With this authority at hand, judges
should not hesitate to exercise appropriate control over the
discovery process.
The case at bar is one for equitable relief6 brought by plaintiff
prior to the award of a bid contract, in which defendant filed a
supplemental motion for summary judgment, on the issue of the
propriety of its cancellation of the solicitation, subsequent to
this court's grant of a preliminary injunction favoring the
plaintiff. In view of the procedural posture of this case and
the requirements of RUSCC 1, this court obviously is compelled to
rule in first instance on defendant's supplemental motion for
summary judgment, which might obviate the necessity for a trial
on the merits.7 This position is clearly consistent with RUSCC
77.1, which imposes an obligation on this court to "manage
assigned cases so as to provide for the prompt dispatch of
business."
At this juncture, plaintiff has made no showing whatsoever that
the items sought to be discovered are relevant to defendant's
pending motion for summary judgment. Inasmuch as the granting of
plaintiff's motion to compel would only bring facts to light
relevant to a trial on the merits, which might or might not take
place, to require defendant to comply with said motion, under the
extant circumstances, would therefore unduly exacerbate the
burden on defendant without justification. Moreover, pursuant to
Summit Nursing Home Inc. v. United States, Ct. Cl. No. 89-74
(Order of April 15, 1975),8 the predecessor court has held that
where "a dispositive motion was pending when the trial judge
allowed discovery, his order was improvidently issued." In that
case, the predecessor court thereupon ordered the suspension of,
and entered a protective order against, further discovery pending
a decision on defendant's dispositive motion.
While this court is compelled to follow only published opinions
of the predecessor court, the foregoing opinion comports with the
view of this court and we therefore adopt the holding therein.
IT IS THEREFORE ORDERED that plaintiff's foregoing motion
pursuant to RUSCC 37(a) be, and is hereby, denied without
prejudice; and that defendant's motion for a protective order,
requesting that discovery be deferred pending a definitive ruling
on its motion for summary judgment, be, and is hereby, granted.9
Reginald W. Gibson, Judge
November 10, 1983
_______________
1 Plaintiff's Rule 37(a) motion consists of a packet of four
documents which are separately captioned as follows: Plaintiff's
Revised Second Motion for Expedited Discovery; Plaintiff's
Memorandum In Support of Revised Second Motion for Expedited
Discovery; Plaintiff's Revised Second Request for Production of
Documents; and Plaintiff's Revised Request for Inspection of
Facilities.
2 Defendant's Supplemental Summary Judgment Motion In Response
to the Court's Order of October 11, 1983; and Plaintiff's Motion
for Summary Declaratory Judgment.
3 Intervenor, Jeffries Banknote Company, also filed an Omnibus
Pleading and Motion For A Protective Order on October 31, 1983,
seeking a protective order with respect to discovery of its
Technical Proposal submitted in Solicitation #114-S as being
confidential information under 5 U.S.C. § 6552, and 18 U.S.C. §
1905.
4 Zerilli v. Smith, 656 F.2d 705, 710 (D.C. Cir. 1981); Hastings
v. North East Ind. School Dist., 615 F.2d 628, 631 (5th Cir.
1980).
5 The identical language is found in RUSCC 1.
6 Pursuant to section 133 of the Federal Courts Improvement Act
of 1982, 28 U.S.C. § 1491(a)(3).
7 The disposition of defendant's summary judgment motion, on the
issue of whether defendant could legally cancel the solicitation,
might also moot plaintiff's motion for declaratory summary
judgment on the issue of whether defendant was legally entitled
to award a contract to bidders other than plaintiff.
8 Pursuant to General Order No. 1 of the United States Claims
Court, all published decisions of the United States Court of
Claims are accepted as binding precedent for the United States
Claims Court, unless and until modified by decisions of the
United States Court of Appeals for the Federal Circuit or the
United States Supreme Court.
9 The protective order filed by Intervenor, Jeffries Banknote
Company, on October 31, 1983, is also granted pending a
definitive ruling on defendant's motion for summary judgment.