When you litigate against the Government in civil cases, you generally presume that there is an element of good faith and fair dealing when it comes to things like due process and the discovery of relevant documents. A recent case at the Court of Federal Claims demonstrated that Government attorneys are not always on their best behavior in litigation.
In K-Con Building Systems, Inc. v. United States, No. 05-914C (Ct. Cl. Aug. 30, 2012), the Court of Federal Claims sanctioned the Government for discovery violations. K-Con had a contract with the Coast Guard for the design and construction of prefabricated metal buildings in North Carolina, Florida, and Michigan, and filed suits regarding the contracts. Discovery in the case became contentious, with numerous motions to compel discovery filed by K-Con, and motions for protective orders filed by the Government.
The Court held a two-week trial in December 2011. On the sixth day of trial, the Government presented testimony of Richard Anderson, a contract inspector working for the Coast Guard as the contracting officer’s technical representative. After Mr. Anderson’s first day of testimony, Mr. Anderson gave government counsel a compact disc that contained documents that government counsel had not previously seen. Government counsel also stated that there were three boxes of additional documents from a prior litigation involving the Plaintiff that had also not been produced. Additionally, Mr. Anderson provided a declaration that stated that he destroyed some of the documents from the three boxes because he did not believe they were needed any longer. In total, 75% of the newly found responsive documents had not been produced in response to Plaintiff’s discovery requests.
The Court cited Rule 37 of the Rules of the Court of Federal Claims, which provides remedies for discovery violations. The Court found that the Government failed to provide the Plaintiff with complete discovery, and that Mr. Anderson’s destruction of a significant portion of the documents compounded the failure because the Coast Guard had an affirmative duty to preserve the documents. The Government argued that the failure was harmless, but the Court disagreed.
The Court held that the Government demonstrated a “high degree of culpability” and the destruction of documents “evinces an abuse of the judicial process.” Therefore, the Court sanctioned the Government, and ordered that the Government was not permitted to use any of the newly found documents as evidence, Mr. Anderson’s trial testimony was stricken from the record, and the Government was ordered to reimburse the Plaintiff for all the costs incurred in pursuing sanctions, including attorney’s fees and travel expenses.
Although the Government was sanctioned in this case, the better course for all involved is to abide by the discovery rules, play fair, and allow a trial to be conducted with all the facts in evidence. Otherwise, the integrity of the judicial system is disturbed and more time is spent fighting over whether a party did the right thing than the time it would take to simply do the right thing.
Brian Stolarz is the attorney responsible for the content of this article.