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United States ex rel. Ferris v. Afognak Native Corp.

United States District Court, D. Alaska

June 4, 2018

UNITED STATES OF AMERICA, ex rel. BEN FERRIS, Plaintiff,
v.
AFOGNAK NATIVE CORPORATION and ALUTIIQ, LLC, Defendants.

          ORDER MOTION FOR A PROTECTIVE ORDER

          H. Russel Holland United States District Judge.

         Relator moves[1] for a protective order quashing defendants' first set of requests for admissions. This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.

         Background

         On April 11, 2008, defendants served relator with their first set of requests for admissions, which consisted of 537 requests.[3] The RFAs consist of two parts. The first part consists of twenty-two RFAs which seek to identify the scope of relator's claims generally. The second part consists of seventeen sections, with each section being devoted to a particular 8(a) subsidiary (the sixteen 8(a) subsidiaries relator alleges are shams and the one 8(a) subsidiary that relator allegedly has admitted was not a sham). Each of the seventeen sections contains approximately 30 RFAs. The RFAs in each section are largely identical. Defendant Alutiiq LLC also served relator with its third set of interrogatories, which includes Interrogatory No. 20.[4] Interrogatory No. 20 asks: “If your response to any of Defendants' First Set of Requests for Admissions is anything other than an unconditional admission, state the reason for denying the request and identify all facts, witnesses, and documents that support that response.”[5]

         Relator now moves for a protective order quashing the requests for admission and Interrogatory No. 20.

         Discussion

         “Courts have the power to issue protective orders in the discovery process in order ‘to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'” Byard v. City and County of San Francisco, 16-cv-00691-WHA (DMR), 2017 WL 988497, at *1 (N.D. Cal. March 15, 2017) (quoting Fed.R.Civ.P. 26(c)(1)). “Generally, a party seeking a protective order has a ‘heavy burden' to show why discovery should be denied. . . .” Sequoia Property v. United States, 203 F.R.D. 447, 451 (E.D. Cal. 2001) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

         Rule 36, Federal Rules of Civil Procedure provides:

A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.

         “Admissions are sought, first, to facilitate proof with respect to issues that cannot be eliminated from the case and, second, to narrow the issues by eliminating those that can be.” Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007). “The rule is not to be used in an effort to ‘harass the other side' or in the hope that a party's adversary will simply concede essential elements.” Id. (quoting Perez v. Miami-Dade County, 297 F.3d 1255, 1268 (11th Cir. 2002)). “Rather, the rule seeks to serve two important goals: truth-seeking in litigation and efficiency in dispensing justice.” Id. “[R]equests for admission should not be used to establish facts which are obviously in dispute, to demand that the other party admit the truth of a legal conclusion, even if the conclusion is attached to operative facts, or to ask the party to admit facts of which he or she has no special knowledge.” Tuvalu v. Woodford, No. CIV S-04-1724 DFL KJM P, 2006 WL 3201096, at *7 (E.D. Cal. Nov. 2, 2006) (internal citations omitted).

         First, relator argues that the sheer number of RFAs that defendants have propounded is oppressive and unduly burdensome. However, “courts do not readily grant protective orders against an entire set of discovery requests on the grounds that the number of requests is excessive.” Jones v. Skolnik, No. 3:10-cv-00162-LRH, 2014 WL 2625000, at *2 (D. Nev. June 12, 2014). “Like all discovery, Requests for Admissions . . . are bound by the scope of Rule 26 requiring discovery to be relevant and proportional to the needs of the case.” Blanton v. Torrey Pines Property Mgmt., Inc., No. 15-CV-0892 W (NLS), 2017 WL 2291752, at *3 (S.D. Cal. May 24, 2017). The factors the court considers in determining whether a discovery request is proportional are 1) “the importance of the issues at stake in the action, ” 2) “the amount in controversy, ” 3) “the parties' relative access to relevant information, ” 4) “the parties' resources, ” 5) “the importance of the discovery in resolving the issues, ” and 6) “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         This case involves fraud on the government, which is an important issue, and relator contends there are billions of dollars at stake. Only relator has access to the information that defendants seek because only he knows whether he plans to dispute certain facts. Relator has the resources to respond to the RFAs given that he has a number of lawyers representing him. And, the expense or burden of responding to these RFAs will not outweigh the likely benefit because relator's responses will help the parties determine what facts are actually in dispute. While “[r]equests to admit should not be excessive in number and, obviously, should be tailored in a manner and scope to avoid harassment and improper motive[, ]” Tamas v. Family Video Movie Club, Inc.,301 F.R.D. 346, 347 (N.D. Ill. 2014), the number of RFAs that defendants have propounded is not excessive, given the nature of this case. Relator has put sixteen of defendants' 8(a) subsidiaries at issue and has alleged a fraudulent scheme involving those sixteen entities that spans several years and that has allegedly resulted in the government being ...


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