      In the United States Court of Federal Claims
                                   No. 13-522C
                              (Filed March 18, 2015)
                             NOT FOR PUBLICATION

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DJ’S MECHANICAL, INC.,  *
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             Plaintiff, *
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     v.                 *
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THE UNITED STATES,      *
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             Defendant. *
                        *
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            ORDER COMPELLING THIRD-PARTY PRODUCTION

       Plaintiff DJ’s Mechanical, Inc. (DJ’s) has moved for an order compelling
Leidos Engineering, LLC (Leidos) to comply with a subpoena to produce documents
served upon Leidos. Under Rule 45(e) of the Rules of the United States Court of
Federal Claims (RCFC), a person ordered by a subpoena to produce documents
must produce or grant access to the requested documents, or state a claim of
privilege or other objection. A person subpoenaed may object to the production of
documents by filing a motion under RCFC 45(c)(3)(A) to quash or modify the
subpoena, for reasons including an unreasonable amount of time to comply, claim of
privilege, or undue burden. Under subsection (g), a person failing to comply with a
subpoena can be held in contempt.

       In its motion, plaintiff recounts that it served Leidos with a subpoena on
October 14, 2014, requesting document production by November 12, 2014. Pl’s Mot.
to Compel (Pl.’s Mot.) ¶¶ 5–6; Ex. A to id. at 1–2. Leidos is the successor company
to The Benham Companies, LLC, which served as the architect or engineer for the
project at issue in the present case. Pl.’s Mot. ¶ 3. After neither a timely objection
nor the requested documents had been received, plaintiff on November 21, 2014,
emailed a letter to the general counsel of Leidos inquiring about the document
request. Id. ¶ 8 & Ex. B. On November 25, 2014, the senior counsel for Leidos sent
a letter by email to plaintiff ’s counsel, objecting to the subpoena on the grounds
that the subpoena was served improperly, created an undue burden, and failed to
sufficiently explain the documents plaintiff sought. Id. ¶ 9 & Ex. C.
       Following further communications on the subject, Leidos’s senior counsel
reported that all documents it had regarding the matter had already been provided
to the government, and stated he “would hate to duplicate efforts” by giving DJ’s
directly what plaintiff should already have received from defendant. Pl.’s Mot. ¶ 13
& Ex. E. When government counsel was initially unable to determine whether
Leidos had provided defendant with any documents, on February 10, 2015, plaintiff
filed the present motion to compel, arguing that under RCFC 45(d)(2)(B)(i),† “the
serving party may move the court for . . . an order compelling production or
inspection.” Pl.’s Mot. ¶¶ 14–18. Plaintiff argues that the documents it seeks from
Leidos are relevant to the present claim, and therefore discoverable, because they
relate to potential defects or omissions in the design of the project at issue here, and
maintains they are neither unduly burdensome nor expensive to produce. Id. ¶ 21–
22. Neither Leidos nor the government has filed a response to plaintiff ’s motion.

      During the status conference held today in this matter, defendant’s counsel
reported that, after prolonged investigation, he was able to confirm that Leidos had
sent documents to the contracting officer while the claims of DJ’s were being
considered at the administrative level, and that those documents would have been
produced to plaintiff. The government could not, however, identify the particular
documents which came from Leidos. Plaintiff persuasively maintains that it is far
from certain, and most unlikely, that all documents in the possession of Leidos that
come within the parameters of the document request were already produced via the
government. Under these circumstances, the Court concludes an order compelling
compliance on the part of Leidos is warranted.

       Accordingly, Leidos is hereby ordered to comply with plaintiff ’s subpoena,
and produce the requested documents on or by Monday, March 30, 2015, at the
place and time requested by plaintiff.

IT IS SO ORDERED.


                                        s/ Victor J. Wolski

                                        VICTOR J. WOLSKI
                                        Judge



† In its motion, plaintiff cites the Federal Rules of Civil Procedure (FRCP) rather
than the RCFC. But since the language of RCFC 45 corresponds to rule 45 of the
FRCP, the Court construed the motion as being filed under the appropriate rule.
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