Sand Point Services, LLC ( 2021 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Sand Point Services, LLC ) ASBCA Nos. 61819, 61820
)
Under Contract No. NNG14WA50C )
APPEARANCES FOR THE APPELLANT: Nathan Rouse, Esq.
Traeger Machetanz, Esq.
Davis Wright Tremaine LLP
Seattle, WA
Eric S. Lammers, Esq.
Rees Broome P.C.
Tysons Corner, VA
Neil Lowenstein, Esq.
Anthony J. Mazzeo, Esq.
Vandeventer Black LLP
Norfolk, VA
APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq.
NASA Chief Trial Attorney
David S. Schuman, Esq.
Senior Trial Attorney
NASA Goddard Space Flight Center
Greenbelt, MD
Paul H. Kim, Esq.
Trial Attorney
NASA Ames Research Center
Moffett Field, CA
OPINION BY ADMINISTRATIVE JUDGE WITWER
These appeals involve disputes arising out of a contract between the National
Aeronautics & Space Administration (NASA) and appellant Sand Point Services,
LLC (SPS) to repair the Wallops Flight Facility’s aircraft parking apron (hereinafter
“the project”). SPS alleges that NASA constructively changed the contract by initially
waiving minor deviations from the contract specifications, and then insisting upon
strict compliance with those specifications. It also alleges that insistence upon strict
compliance with the specifications resulted in economic waste. Further, SPS alleges
that it incurred extra costs and encountered delays because of a differing site condition.
Fidelity and Deposit Company of Maryland (F&D), a non-party surety, furnished
performance and payment bonds under the Miller Act, 40 U.S.C. § 3131 et seq., relating
to the project at issue in these appeals. On October 16, 2020, NASA served F&D with a
subpoena duces tecum. F&D has moved to quash the subpoena in its entirety. For the
reasons set forth below, F&D’s motion is GRANTED.
Appellant also moves to quash the subpoena served on F&D. Additionally,
appellant moves to quash a subpoena duces tecum issued to, but not yet served on,
David Bresel, an attorney employed by F&D. For reasons set forth below, appellant’s
motion to quash the subpoena directed to F&D is DENIED as moot and its motion to
quash the subpoena directed to Mr. Bresel is DISMISSED.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS
I. The Miller Act Dispute
On September 8, 2014, NASA entered into Contract No. NNG14WA50C with
appellant to repair the Wallops Flight Facility’s aircraft parking apron (R4, tab 1 at 1-2, 4,
tab 3 at 3). The contract required appellant to obtain a bond (R4, tab 1 at 4), which it
obtained from F&D (F&D mot. at 2). In 2016, F&D received a claim from appellant’s
subcontractor, Atlantic Contracting and Material, Inc. (ACM), on the Miller Act payment
bond furnished by F&D (id.). After performing an investigation commensurate with its
role as surety, F&D denied ACM’s claim (id).
ACM subsequently filed suit in Federal district court. Appellant intervened in the
litigation and the same counsel represented F&D and appellant (id.). Appellant argued,
inter alia, that the Miller Act action was premature because ACM had not completed its
subcontract work to NASA’s satisfaction. In support of its argument, appellant’s general
manager, Christopher Woodruff, submitted a declaration, alleging that “ACM has not
fully and duly performed its subcontract work under the terms of the ACM subcontract”
(gov’t opp’n, ex. 7, Woodruff decl., ¶ 16). In September 2017, the parties to the district
court litigation reached an agreement and stipulated to a dismissal with prejudice of
ACM’s suit (F&D mot. at 2).
II. Appeals Pending Before the Board
In September 2018, appellant filed two notices of appeal and complaints with
the Board. In the first appeal, which we docketed as ASBCA No. 61819 (hereinafter
“constructive change and waste appeal”), appellant admits that the project’s concrete
texture and mooring eyes were deficient, but alleges that those deficiencies involve minor
issues. Moreover, appellant alleges that NASA constructively changed the contract when
it waived strict compliance with the specifications by accepting the concrete texture and
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mooring eyes, but then insisted upon strict compliance with the specifications. Appellant
also alleges that insisting upon strict compliance with the specifications caused economic
waste.
In the second appeal, which we docketed as ASBCA No. 61820 (hereinafter
“differing site condition appeal”), appellant concedes that there were delays, but alleges
that those delays were attributable to NASA’s failure to provide directions after appellant
notified it of a differing site condition.
III. The Board’s August 5, 2019 Decision
In October 2018, NASA filed a motion to dismiss and, in the alternative,
motion for summary judgment. In moving to dismiss, NASA argued that the Board
lacked jurisdiction because the contracting officer’s final decision (COFD) was based
on a suspicion of fraud. Specifically, NASA contended that the claims appeared to be
fraudulent because Mr. Woodruff admitted in his declaration submitted in the Miller Act
litigation that ACM’s work was incomplete and not in conformance with the contract
specifications. In moving for summary judgment, NASA argued that Mr. Woodruff’s
admission entitled NASA to judgment as a matter of law, because it demonstrated that
appellant’s failure to perform in accordance with the specifications was ACM’s fault.
Finally, NASA argued that a bilateral modification released appellant’s differing site
condition claim.
On August 5, 2019, the Board denied NASA’s motions (hereinafter “Decision”).
Sand Point Servs., Inc., ASBCA Nos. 61819, 61820, 19-1 BCA ¶ 37,412. Of relevance
here, in denying NASA’s motion to dismiss, the Board held that the COFD was not based
solely upon a suspicion of fraud, and that the Board could resolve the appeals without
making factual determinations of fraud. Id. at ¶ 181,857. In denying NASA’s motion for
summary judgment, the Board found that appellant “did not admit that the failure to
comply with the specifications was ACM’s fault.” Id. Further, the Board concluded that,
even if appellant had made such an admission, the “issue is not material to SPS’s
constructive change and waste appeal.” Id.IV. The Board’s August 28, 2019 Discovery Order
While NASA’s dispositive motions were pending before the Board, the parties
engaged in discovery. On May 15, 2019, NASA filed a motion to compel discovery
related to the dispute between appellant and its subcontractor. On August 15, 2019,
after receipt of the Decision, NASA renewed its motion to compel.
The Board denied NASA’s motion to compel in an order dated August 28, 2019
(hereinafter “Order”). The Order reiterated that the Miller Act dispute was irrelevant to
the appeals because “even if SPS’s dispute with its subcontractor established that it was
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the subcontractor’s fault that performance did not meet the specifications, that fact would
not preclude SPS’s claim” (Order at 2). The Order instructed NASA to consider whether
it needed to recalibrate future discovery requests in light of the Decision. If NASA
concluded that such recalibration was unnecessary, the Board ordered NASA to conduct
good faith discussions with SPS to explain how the information sought was relevant in
light of the Decision. If such discussions proved unproductive, the Order permitted the
government to “file a motion to compel providing such an explanation to the Board” (id.).
To date, no motions to compel the production of information related to the Miller Act
dispute have been submitted to the Board.
V. Subpoenas Duces Tecum
Turning to the issue of the subpoenas, on October 7, 2020, NASA requested the
subpoenas at issue here, which the Board issued on October 14. On October 16, F&D
accepted service of the subpoena directed to the surety. 1 That subpoena required F&D
to produce for a deposition the person most knowledgeable or person most qualified
“to discuss all non-privileged matters related to any claim or demand for payment from
[ACM] concerning [SPS] and the project under contract NNG14WA50C, between
September 2014 and the present” (F&D mot., ex. 7 at 1-2). Similarly, the subpoena
requested all non-privileged records related to ACM’s Miller Act claim for the same
period (id. at 2).
Regarding the subpoena directed to Mr. Bresel, the parties represent that the
subpoena has not been served. 2 (F&D mot. at 1 n.2; app. mot. at 3; gov’t opp’n at 3)
Like the subpoena directed to F&D, the subpoena requested by NASA and directed to
1 The subpoena was directed to Zurich North America (F&D mot., ex. 7). F&D
represents that Zurich North America is a trade style used by F&D and its
affiliates, that F&D is the legal entity that issued the bonds relating to the project
at issue in these appeals, and that F&D is the entity with standing to move to
quash the subpoena (F&D mot. at 1 n.1). In the event the Board denies its motion
to quash, F&D requests that we reissue the subpoena in the name of F&D (id.).
NASA counters that such action is unnecessary because NASA clarified elsewhere
on the subpoena that it was seeking testimony and records from Zurich North
America “or any of its subdivisions, subunits, affiliates, or related entities,
including but not limited to Fidelity & Deposit Company of Maryland” (gov’t
opp’n at 1 n.1) (quoting F&D mot., ex. 7). Because we grant F&D’s motion to
quash, we need not address F&D’s request to reissue the subpoena.
2 It is not clear from the briefs whether Mr. Bresel works directly for F&D or for one of
its related entities. F&D asserts, however, that Mr. Bresel is “its employee”
(see F&D mot. at 1 n.2). F&D did not move, at this time, to quash the subpoena
directed to Mr. Bresel, but reserved the right to do so upon proper service (id.).
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Mr. Bresel seeks testimony and records related to ACM’s Miller Act claim (app. mot.,
ex. 1).
On October 26, F&D moved to quash the subpoena directed to the surety.
That same day, appellant also moved to quash the subpoena directed to the surety,
as well as to quash the subpoena directed to Mr. Bresel. NASA opposed the motions
on November 16. F&D filed a reply on December 2. Appellant elected to rest on its
opening motion.
VI. Contentions of the Parties
F&D challenges the subpoena directed to it on three grounds. First, F&D argues
that the subpoena is overbroad and seeks information not relevant to the proceedings
before the Board. Second, F&D argues that the subpoena seeks information that is
duplicative or cumulative of information already in NASA’s possession or available to
NASA through routine discovery from appellant. Finally, F&D argues that the subpoena
seeks information protected by the attorney-client privilege and the work product
doctrine, and that, under the common interest doctrine, F&D did not waive such
protections by disclosing the information to appellant during the pendency of the Miller
Act claim and litigation.
Appellant challenges the subpoenas directed to F&D and Mr. Bresel on two
grounds. First, appellant argues that the subpoenas seek information not relevant to the
issues raised in the proceedings before the Board. Second, appellant argues that the
subpoenas seek information protected by the attorney-client privilege and the work
product doctrine, and that, under the common interest doctrine, appellant did not waive
such protections by disclosing the information to F&D or Mr. Bresel during the pendency
of the Miller Act claim and litigation.
In opposition to F&D’s motion, NASA responds that the subpoena directed to
F&D seeks relevant, non-privileged information that will not unduly burden F&D to
produce. In opposition to appellant’s motion to quash, NASA argues that appellant lacks
standing to challenge subpoenas directed to non-parties. NASA further argues that the
Board lacks jurisdiction to consider appellant’s challenge to the subpoena directed to
Mr. Bresel because the subpoena has not been served.
DECISION
I. Legal Standard
The Contract Disputes Act (CDA) provides that members of an agency board of
contract appeals, such as the ASBCA, may “require by subpoena the attendance of
witnesses, and production of books and papers, for the taking of testimony or evidence by
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deposition or in the hearing of an appeal by the agency board” (41 U.S.C. § 7105(f)).
Board Rule 22 governs subpoenas and provides, in pertinent part, that “[u]pon written
request of either party, or on his or her own initiative, an Administrative Judge may issue
a subpoena requiring” testimony and records (Board Rule 22(b)). To obtain a subpoena,
the requesting party must sufficiently “state the reasonable scope and general relevance to
the case of the testimony and of any books and records sought” (Board Rule 22(c)(3)).
The Board’s rules further provide that “the Board may quash or modify a subpoena if it
is unreasonable or oppressive or for other good cause shown” (Board Rule 22(d)).
The moving party has the burden of proof to demonstrate that compliance with the
subpoena would be unreasonable or oppressive. Truswal Sys. Corp. v. Hydro-Air Eng.,
Inc., 813 F.2d 1207, 1210 (Fed. Cir. 1987).
Although not binding on the Board, we also look to the Federal Rules of Civil
Procedure (FED. R. CIV. P.), and decisions addressing those rules, for guidance in
discovery disputes. Thai Hai, ASBCA No. 53375, 02-2 BCA ¶ 31, 971 at 157,920;
Ingalls Shipbuilding Div. Litton Systems, Inc., ASBCA No. 17177, 73-2 BCA ¶ 10,205at 48,094. Relevant here, the counterpart to Board Rule 22(d), FED. R. CIV. P. 45,
provides that a court shall quash or modify a subpoena if it subjects a person to undue
burden. FED. R. CIV. P. 45(d)(3)(A)(iv).
When determining if a burden is undue, Federal courts (and thus the Board,
which applies the same standard) consider whether “the burden of compliance with
[the subpoena] would exceed the benefit of production of the material sought by it.”
Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004). See also
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998); Dell Inc. v. DeCosta
et al., 233 F. Supp. 3d 1, 3 (D.D.C. 2017). In doing so, courts generally balance various
factors, including the relevance of the discovery sought, the subpoenaing party’s need for
the information, the breadth of the discovery request, and the burden imposed on the
subpoenaed party. See e.g., Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818
(5th Cir. 2004)); Dell Inc., 223 F. Supp. 3d at 3 (citations omitted); Parker v. Four
Seasons Hotels, Ltd., 291 F.R.D. 181, 188 (N.D. Ill. 2013); Zoltek Corp. v. United States,
104 Fed. Cl. 647, 656 (2012) (quoting Jade Trading, LLC v. United States, 65 Fed.
Cl. 188, 190 (2005)); Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332,
354 (D.D.C. 2011). We do the same.
Non-party status is also “a significant factor to be considered in determining
whether the burden imposed by a subpoena is undue.” Parker, 291 F.R.D. at 188
(citations omitted). See also Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d
422, 424 (Fed. Cir. 1993) (holding that “nonparty status may be considered by the court
in weighing the burdens imposed in the circumstances”) (citation omitted); Truswal Sys.
Corp., 813 F.2d at 1210 (concluding that “[i]n assessing the burden of complying with
a subpoena, a court may consider as one factor that the deponent is not a party.”);
Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980) (stating that
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“[w]hile discovery is a valuable right and should not be unnecessarily restricted, . . .
the ‘necessary’ restriction may be broader when a nonparty is the target of discovery”)
(internal citation omitted). Because of the different expectations for non-parties in
accepting the burdens of litigation, “courts give special weight to the unwanted burdens
thrust upon non-parties when balancing competing needs.” Parker, 291 F.R.D. at 188.
See also Cusumano, 162 F.3d at 717 (observing that non-parties “have no dog in [the]
fight” and, therefore, “concern for the unwanted burden thrust upon non-parties is a
factor entitled to special weight in evaluating the balance of competing needs”).
Finally, a subpoena may be quashed or modified if it seeks discovery that is
“unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive; [or] the party seeking discovery
has had ample opportunity to obtain the information by discovery in the action.” FED. R.
CIV. P. 26(b)(2)(C); JZ Buckingham Investments LLC v. United States, 78 Fed. Cl. 15,
18-19 (2007). Motions to quash are within the sound discretion of the trial forum.
See Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).
II. F&D’S Motion To Quash Is Granted.
As explained below, we grant F&D’s motion for two independent reasons.
First, we conclude that the discovery NASA seeks is not likely to lead to the production
of information relevant to any party’s claim or defense in these appeals. Second, we
conclude that the discovery NASA seeks from F&D, a non-party, is duplicative or
cumulative of information otherwise available to NASA by direct discovery from
appellant.
A. The subpoena directed to F&D is overbroad in seeking irrelevant
information.
F&D argues that the information NASA seeks is not relevant to the claims or
defenses raised in the instant appeals. In particular, F&D argues that the surety’s
assessment of the ACM’s Miller Act claim is immaterial to appellant’s contractual claims
pending before the Board in these proceedings. We agree.
Neither Board Rule 22 nor FED. R. CIV. P. 45 expressly lists irrelevance or
overbreadth as reasons for quashing a subpoena. Courts, however, have consistently held
that “the scope of discovery allowed under a subpoena is the same as the scope of
discovery allowed under Rule 26” of the Federal Rules of Civil Procedure. Singletary v.
Sterling Transp. Co., 289 F.R.D. 237, 240-41 (E.D.Va. 2012). See Cook v. Howard,
No. 11-1601, 2012 WL 3634451, at *6 (4th Cir. Aug. 24, 2012) (per curiam) (concluding
that “[a]lthough Rule 45(c) sets forth additional grounds on which a subpoena against a
third party may be quashed . . . those factors are co-extensive with the general rules
governing all discovery that are set forth in Rule 26”). See also Barrington v. Mortgage
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IT, Inc., No. 07-61304-CIV, 2007 WL 4370647, at *2 (S.D. Fla. Dec. 10, 2007)
(collecting cases); Advisory Committee Note to the 1970 Amendment of Rule 45(d)(1)
(stating that the 1970 amendments “make it clear that the scope of discovery through a
subpoena is the same as that applicable to Rule 34 and other discovery rules”);
9A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 2459
(2d ed. 1995) (providing that Rule 45 subpoena incorporates the provisions of
Rules 26(b) and 34).
FED. R. CIV. P. 26(b)(1) limits the scope of discovery to those materials that are
“relevant to any party’s claim or defense and proportional to the needs of the case[.]”
As such, a subpoena may be quashed as overbroad where it seeks information not
relevant to the underlying action. See Singletary, 289 F.R.D. at 241 (citing In Re
Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D.Va. 2008)).
See also Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1328 (Fed. Cir. 1990)
(holding that a competitor who was not a party to patent owner’s infringement suit was
entitled to quashing of subpoena seeking matters not relevant to infringement action).
While the relevancy requirement in FED. R. CIV. P. 26(b)(1) is to be construed broadly,
it is not without bounds. See Micro Motion, Inc., 894 F.2d at 1326-27. Discovery is
“designed to assist a party to prove a claim it reasonably believes to be viable without
discovery, not to find out if it has any basis for a claim.” Id. at 1327 (citations omitted).
“That the discovery might uncover evidence showing that a [party] has a legitimate claim
does not justify the discovery request[.]” Id.Here, we conclude that the subpoena seeks information not relevant to our
resolution of these appeals and, consequently, we conclude that the subpoena is
overbroad. We, therefore, quash the subpoena as unduly burdensome. See In Re
Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d at 612 (holding that “a subpoena
imposes an undue burden on a party when [it] is overbroad”). See also Cook v. Howard,
No. 11-1601, 2012 WL 3634451, at *6 n.7 (concluding that the undue burden grounds of
FED. R. CIV. P. 45(c)(3) “encompass[] situations where the subpoena seeks information
irrelevant to the case”).
On its face, the subpoena seeks information related to ACM’s Miller Act claim.
In its opposition to the motions, NASA elaborates upon its request, explaining that it
wants “to uncover what the surety investigated and how it resolved the subcontractor’s
claim,” as well as “the surety’s factual evaluation of the merits of the subcontractor’s
demand for payment” (gov’t opp’n at 4-5, 10). NASA argues that it is entitled to
understand F&D’s “view” of the Miller Act claim and asserts that it seeks to answer the
question: “What did Fidelity think about the claim or claims from ACM?” (id. at 10-11).
This information, however, is not relevant to the claims or defenses raised in these
appeals because the Miller Act dispute is not at issue.
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Apart from several conclusory assertions that the information sought is “intimately
connected to” or “inextricably tied” to the appeals pending before the Board (id. at 6-7),
NASA provides no explanation whatsoever regarding how F&D’s assessment or “view”
of ACM’s Miller Act claim is relevant to the Board’s assessment of appellant’s
contractual claims, namely appellant’s constructive change and waste claim and its
differing site conditions claim. Instead, NASA’s assertions seem to imply that the Board
should find the Miller Act dispute per se relevant.
To the contrary, a surety’s evaluation of a bond claim under the law of suretyship
generally implicates legal and factual matters distinct from the Board’s evaluation of
contractual claims under the Contract Disputes Act. For instance, as F&D explains, in
assessing a bond claim, a surety may consider, inter alia, whether a claimant has
complied with bond claim filing deadlines, whether the nature of the services furnished
are compensable under the Miller Act, and whether any arbitration and/or payment
timing clauses contained in the subcontract preclude recovery (F&D mot. at 7-8). 3
NASA does not allege—and we fail to perceive—how F&D’s evaluation of these types
of issues would be relevant to the contractual matters raised in the proceedings before us.
Even assuming for the sake of argument, however, that F&D did consider facts relevant
to the matters pending before us, we fail to see how F&D’s assessment of those facts in
deciding to deny the bond claim would have any bearing on our decision. The Board is
fully competent to decide the contractual claims pending before us without receiving
opinion testimony from F&D. 4
Although NASA represents that it is seeking to understand F&D’s rationale in
denying ACM’s Miller Act claim, it is manifestly clear from NASA’s opposition brief
that what it truly seeks is information to support its earlier assertions of fraud. In this
regard, NASA devotes the majority of its brief to its argument that appellant has taken a
position in these appeals that is allegedly inconsistent with the position it took in the
Miller Act litigation (see gov’t opp’n at 9-11, 15-16). Specifically, NASA alleges that,
in the Miller Act litigation, appellant “maintained a position that its subcontractor was not
due any payment due to defective performance” (id. at 9). NASA alleges that appellant
has reversed course, arguing in these appeals that ACM is entitled to payment on its
pass-through claims.
3 In appellant’s filings in the Miller Act litigation, appellant highlights another rather
pertinent reason that a Miller Act claim might be denied, i.e., that the claimant has
not prepared or submitted a contractually mandated certified pass-through claim to
the prime contractor (gov’t opp’n, ex. 7, Woodruff decl., ¶ 18).
4 Had NASA made a narrowly tailored request for any documents reflecting facts in the
possession of F&D that were relevant to the dispute before us, we might have
reached a different conclusion. That scenario, however, is not before us and our
discussion of NASA’s fraud defense below suggests that it is unlikely the types of
facts sought by NASA would be relevant.
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Despite NASA’s preoccupation with appellant’s alleged change in position,
the Board has already determined that it may resolve these appeals without making
factual determinations of fraud. Specifically, in our August 5, 2019 decision, we held,
in pertinent part:
The statements in the claims that the CO found were incorrect
were those that purportedly were inconsistent with
Mr. Woodruff’s declaration that ACM failed to perform in
accordance with the specifications. For purposes of this
appeal, SPS concedes that it and ACM did not perform in
accordance with the specifications. In particular, in its
differing site condition appeal, SPS admits performance
delays, but—consistent with Mr. Woodruff’s declaration—
asserts that those delays were due to a differing site condition.
Moreover, in its constructive change and waste appeal,
SPS concedes that the concrete texture and mooring eyes did
not meet the specifications, but asserts that those defects were
minor, NASA waived strict compliance with those
specifications, and enforcing those specifications would result
in economic waste. Because we need not make factual
determinations of fraud to resolve those arguments,
we possess jurisdiction over these appeals.
Sand Point Servs., Inc., 19-1 BCA at ¶ 181,859-60 (internal citations omitted).
In denying appellant’s request for summary judgment, the Board further explained:
[Mr. Woodruff’s] admission would not dispose of the
constructive change and waste appeal. That is because on
appeal, SPS’s argument is that, even if it was ACM’s fault
that the concrete texture and mooring eyes did not meet the
specifications, NASA waived strict compliance with those
specifications, and strict enforcement of those specifications
would result in economic waste. Therefore, not only does
Mr. Woodruff’s declaration fail to establish a lack of genuine
dispute as to whether the concrete texture and mooring eyes
defects were ACM’s fault, that issue is not material to this
appeal.
Id. at ¶ 181,860 (internal citations omitted).
Moreover, as explained above, the Board reiterated these conclusions in its
August 28, 2019 discovery order. (Order at 2) (finding the Miller Act dispute irrelevant
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to the appeals because “even if SPS’s dispute with its subcontractor established that it
was the subcontractor’s fault that performance did not meet the specifications, that fact
would not preclude SPS’s claim”). Hence, on two previous occasions, the Board has
determined that any information pertaining to the Miller Act dispute is immaterial to the
issues presented in these appeals. 5
In sum, although the Board reads “relevance” broadly, we do not endorse fishing
expeditions, discovery abuse, and inordinate expense involved in overbroad and
far-ranging discovery requests. Instead, the Board tailors discovery to the issues involved
in the particular appeal. Here, the Board concludes that NASA’s subpoena request for
discovery relating to the Miller Act dispute is not facially relevant to these appeals, and
NASA has failed, in its brief, to convince the Board that the information is relevant.
Even if the Board concedes that the information may be marginally relevant, the burden
and expense placed on F&D, a non-party to these appeals, outweighs the relevance and
value of the information.
B. The subpoena directed to F&D is duplicative or cumulative of information
otherwise available to NASA by direct discovery.
F&D presents an additional basis for its motion to quash, arguing that the
discovery NASA seeks is available to NASA from other sources, namely from the
appellant, a party to these proceedings. F&D characterizes its role in the project as a
mere “bystander,” reliant upon others, such as appellant, to provide it with information to
evaluate the bond claim and to defend against the Miller Act suit (F&D mot. at 5, 10).
F&D contends, therefore, that the subpoena directed to it seeks information that has been
(or could have been) requested of and produced by appellant (id. at 5-6). F&D further
contends that NASA’s failure to pursue fully such information from appellant through
direct discovery and, if necessary, to renew its motion to compel such information,
does not entitle NASA to seek the information through the more intrusive and
burdensome means of a non-party subpoena (F&D reply br. at 2).
NASA concedes that the information it seeks from F&D was requested from
appellant during discovery. See e.g., gov’t opp’n at 10 (contending that “[a]ppellant
refused to provide this information in written discovery”). See also id. at 8 (clarifying
that “[i]t is this information, not provided by Appellant during discovery, that Respondent
seeks through relevant deposition testimony from the person most knowledgeable/person
most qualified to provide such information on behalf of the surety”); id. at 9 (asserting
that “[a]ppellant has not provided that information in discovery.”); id. at 7 (explaining
5 Although NASA claims that it has uncovered, through discovery, more evidence that
appellant viewed ACM’s work to be non-compliant with the terms of the contract
(see gov’t opp’n at 14-16), NASA fails to explain how such a view is relevant to a
claim or defense in these appeals.
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that one of the purposes of the subpoena is to determine what, if any, supporting
information ACM provided to F&D). Despite admitting the duplicative nature of the
subpoena request, NASA asserts that discovery from F&D is nevertheless permissible
because the government’s attempts to obtain discovery from appellant have been
unsuccessful (see id. at 9-10).6 We disagree.
A non-party subpoena seeking information that is readily available from a party
through discovery may be quashed as duplicative or cumulative. See FED. R. CIV.
P. 26(b)(2)(C); Parker, 291 F.R.D. at 188 (quashing plaintiff’s subpoena served on a
non-party because either the documents sought were duplicative of discovery requests
directed to defendant or the requests were invalid as overly broad, burdensome, irrelevant
or previously could have been the subject of discovery). See also Haworth v. Herman
Miller, 998 F.2d 975, 978 (Fed. Cir. 1993) (holding that a court may properly require
parties to seek discovery first from other parties before burdening non-parties);
American Standard Inc. v. Pfizer Inc. et al., 828 F.2d 734, 743 (Fed. Cir. 1987)
(noting that the need for discovery “is diminished when the information is available
elsewhere”).
NASA’s argument that appellant allegedly failed to comply with NASA’s
discovery requests does not change the situation. A party does not demonstrate a
compelling need to make duplicative or cumulative non-party requests simply because its
opponent in the underlying action fails to comply with document requests for the same
information. NASA’s failure to show proper efforts to compel subcontractor payment
dispute discovery from appellant, or the lack of success in any prior attempts, does not
permit NASA to unduly burden F&D with responding to the subpoena.
As such, the record before the Board demonstrates that NASA has not exercised
reasonable diligence in pursuing the desired information from appellant, the least
intrusive means of obtaining the information in the underlying appeal. See FED. R. CIV.
P. 26(b)(2)(C)(i) (permitting limitation of discovery that “can be obtained from some
other source that is more convenient, less burdensome, or less expensive”). Accordingly,
the Board quashes the non-party subpoena directed to F&D as duplicative or cumulative
because it seeks information that is readily available from a party through discovery.
In short, based on the two independent grounds discussed above, we find that
F&D has satisfied its burden in moving to quash the subpoena. Thus, the Board quashes
in its entirety the subpoena issued to F&D. Having granted F&D’s motion on the
grounds detailed above, we need not consider F&D’s final argument, i.e., that the
6 NASA does not assert, nor does it provide any evidence to support an assertion, that the
information it seeks is not within the possession, custody, or control of appellant,
only that appellant has refused to produce the information in discovery
(see generally gov’t opp’n at 9-10).
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information sought is protected by the work product doctrine and the attorney-client
privilege, and that, under the common interest doctrine, F&D did not waive such
protections by disclosing the information to appellant during the pendency of the Miller
Act claim and litigation.
C. NASA’s request to dismiss F&D’s motion is unavailing.
NASA raises one final—and rather convoluted—challenge to F&D’s motion.
NASA argues that the Board must dismiss F&D’s motion because the motion
incorporates by reference the statement of facts set forth in appellant’s motion (gov’t
opp’n at 3).7 NASA’s dismissal argument proceeds as follows: First, the Board should
dismiss appellant’s motion (for reasons detailed in Section III below) and strike any
references in F&D’s motion to the facts detailed in appellant’s motion. Next, having
struck such references, the Board is compelled to dismiss F&D’s motion because the
facts are central to the Board’s resolution of the motion. Without such facts, F&D’s
motion fails and should be dismissed.
We find NASA’s argument entirely without merit. Even if the Board were to
dismiss appellant’s motion, NASA cites no legal authority for striking any portion of
appellant’s or F&D’s motions, let alone dismissing F&D’s motion. More importantly,
in this context, striking a recitation of relevant facts from a party’s brief does not render
such facts non-existent or prevent the Board from considering such facts. As F&D aptly
notes in its reply brief, NASA appears to “treat[] the basic facts incorporated by reference
into F&D’s brief as if they were criminal evidence that must be suppressed due to an
unconstitutional search and seizure” (F&D reply br. at 2). We agree and find NASA’s
quasi “fruit of the poisonous tree” argument unavailing and unsupported.
III. Appellant’s Motion To Quash The Subpoena Directed To F&D Is Denied;
Its Motion To Quash The Subpoena Directed To Mr. Bresel Is Dismissed.
A. Appellant possesses standing to challenge the non-party subpoenas.
Before considering the merits of appellant’s motion, we first must determine
whether appellant possesses standing to challenge the non-party subpoenas issued to
F&D and Mr. Bresel. In its opposition, NASA argues that the Board should “strike”
appellant’s challenge to the subpoena directed to F&D because appellant does not
represent F&D (gov’t opp’n at 13). Although NASA does not style its argument as a
request that the Board dismiss appellant’s challenge for lack of standing, we construe it
7 Specifically, in the background section of its motion, F&D states that “[t]o the extent
the Board’s resolution of this motion requires consideration of the factual and
procedural background of these appeals, F&D incorporates the statement of facts
set forth in SPS’s motion” (F&D mot. at 2).
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as such. Moreover, we note that the same argument would apply to Mr. Bresel, as an
employee of a non-party.
Generally, a party lacks standing to challenge a subpoena issued to a non-party
unless the party claims some personal right or privilege in the information sought by the
subpoena. Singletary, 289 F.R.D. at 239 (quoting United States v. Idema, 118 F. App’x
740, 744 (4th Cir. 2005)). See also Washington v. Thurgood Marshall Academy,
230 F.R.D. 18, 22 (D.C. Cir. 2005) (holding that “absent a privilege, personal interest, or
proprietary interest, [a party] has no standing to seek to quash, under Federal Rule of
Civil Procedure (‘Rule’) 45, a subpoena issued to a non-party.”); Stevenson v. Stanley
Bostitch, Inc., 201 F.R.D. 551, 555 n.3 (N.D. Ga. 2001) (noting that “it appears to be the
general rule of the federal courts that a party has standing to challenge a subpoena when
she alleges a ‘personal right or privilege with respect to the materials subpoenaed.’”)
(quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)).
Here, appellant alleges that NASA seeks information protected by the attorney-
client privilege and the work product doctrine, and that, under the common interest
doctrine, appellant did not waive such protections by disclosing the information to F&D
or Mr. Bresel during the pendency of the Miller Act claim and litigation. Accordingly,
the Board finds that appellant has standing to challenge the subpoenas directed to F&D
and Mr. Bresel. 8 See e.g., Stevenson, 201 F.R.D. at 555 n.3 (finding plaintiff had
standing to attempt to quash subpoena where plaintiff alleged the material sought was
confidential and protected by privilege).
B. Appellant’s motion to quash the subpoena directed to F&D is denied as
moot.
Although we conclude that appellant possesses standing to challenge the subpoena
directed to F&D, we nevertheless deny this aspect of appellant’s motion as moot. Having
granted F&D’s own motion to quash the subpoena, we see no reason to consider the
alternative reasons relating to privilege raised by appellant.
8 Although we conclude that appellant possesses standing to challenge the subpoenas on
the basis that the information sought may be protected, we suspect appellant’s
challenge to be overbroad. Contrary to appellant’s claims (see generally app. mot.
at 5-6), it is unlikely that all documents and information sought by NASA are
subject to the asserted privileges and protections. Whether appellant’s challenge is
overbroad and to what extent, however, are questions to be resolved on the merits.
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C. Appellant’s motion to quash the subpoena directed to Mr. Bresel is
dismissed for prudential reasons.
Finally, NASA asserts that appellant’s motion to quash the subpoena directed to
Mr. Bresel is not ripe for adjudication because the subpoena has not been served (gov’t
opp’n at 3, 13). NASA argues that the Board, therefore, must dismiss appellant’s motion
for lack of jurisdiction (id. at 3). NASA, however, offers no support for its jurisdictional
argument, purportedly expecting Board to accept its ipse dixit regarding our authority.
We decline to do so.
Before turning to NASA’s jurisdictional argument, we note that fact discovery
closed in these appeals on December 17, 2020. To our knowledge, NASA did not serve
Mr. Bresel with the subpoena prior to this deadline. Accordingly, it is probable that the
Board could dismiss as moot appellant’s motion to quash the subpoena directed to
Mr. Bresel. That said, having received no briefing from the parties regarding the impact
of the close of discovery on this aspect of appellant’s motion and not wishing to delay
further the resolution of the pending discovery dispute, we proceed to address the
argument raised by NASA.
Our rules provide that a party’s request to quash or modify a subpoena should be
“made within 10 days after service but in any event not later than the time specified in the
subpoena for compliance” (Board Rule 22(d)). The intent of these parameters is to
ensure that parties submit requests in a timely manner to the Board. Our rules, however,
do not preclude our review of requests submitted outside these parameters.
Consequently, although there may be prudential grounds favoring dismissal of requests
submitted outside the parameters established in Rule 22(d), the Board, in its discretion,
may consider such requests.
At this time, the Board declines to consider appellant’s challenge to the subpoena
directed to Mr. Bresel, which would necessitate an analysis of the scope of several
asserted privileges. Rather, we find such an analysis premature. The subpoena directed
to Mr. Bresel seeks the same information sought through the subpoena directed to F&D
and, therefore, it should be evident to the parties that the subpoena directed to Mr. Bresel
likely suffers from the same problems we describe in Section II above. As a result,
NASA should reexamine the subpoena directed to Mr. Bresel in light of this decision.
At this time, we dismiss without prejudice appellant’s challenge to the subpoena directed
to Mr. Bresel.
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CONCLUSION
For the foregoing reasons, F&D’s motion to quash the subpoena directed to it is
GRANTED. Appellant’s motion to quash the subpoena directed to F&D is DENIED as
moot and its motion to quash the subpoena directed to Mr. Bresel is DISMISSED.
Dated: January 13, 2021
ELIZABETH WITWER
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD
J. REID PROUTY
Administrative Judge
Administrative Judge
Acting Chairman
Vice Chairman
Armed Services Board
Armed Services Board
of Contract Appeals
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 61819, 61820, Appeals of
Sand Point Services, LLC, rendered in conformance with the Board’s Charter.
Dated: January 13, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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