           In the United States Court of Federal Claims
                                        No. 15-1189C
                                  Filed: September 14, 2018
                                  NOT FOR PUBLICATION

                                              )
 MARINE INDUSTRIAL                            )
 CONSTRUCTION, LLC,                           )
                                              )
        Plaintiff,                            )      Motion to Compel; RCFC 26; RCFC 37;
                                              )      Motion to Strike; Work-Product Privilege;
 v.                                           )      Attorney-Client Privilege.
                                              )
 THE UNITED STATES,                           )
                                              )
        Defendant-Counterclaimant.            )
                                              )

     Joseph A. Yazbeck, Jr., Attorney of Record, David H. Bowser, Jordan Ramis, PC, Lake
Oswego, OR, for plaintiff.

        Jimmy S. McBirney, Trial Counsel, David K. Mickle, Assistant Director, Robert E.
Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.

                    MEMORANDUM OPINION AND ORDER ON
                  THE PARTIES’ MOTIONS TO COMPEL AND THE
            GOVERNMENT’S MOTION TO STRIKE AND SCHEDULING ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, Marine Industrial Construction, LLC (“MIC”) seeks to compel the disclosure of
certain documents relevant to MIC’s Contract Disputes Act claim that are within the possession
of the government’s expert dredging consultant, Dalton, Olmstead & Fuglevand, Inc. (“DOF”).
See generally Pl. Mot. The government opposes MIC’s motion to compel upon the grounds that
the documents requested from DOF have been properly withheld from disclosure under the
work-product privilege and the attorney-client privilege. See generally Def. Mot. In addition,
the government moves to: (1) compel MIC to return or destroy certain documents related to
DOF that the government inadvertently disclosed during fact discovery; (2) strike certain
exhibits to MIC’s motion to compel; and (3) require MIC to pay the government’s reasonable
expenses in connection with the parties’ motions to compel. Id.; see also RCFC 26(b)(5)(B);
RCFC 37(a)(5). For the reasons set forth below, the Court: (1) DENIES MIC’s motion to
compel; (2) GRANTS the government’s motion to strike; (3) GRANTS the government’s
motion to compel; and (4) HOLDS IN ABEYANCE the government’s request that MIC pay its
reasonable expenses.

II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.      Factual Background

        The parties are currently engaged in fact discovery in this Contract Disputes Act action.
MIC filed this lawsuit on October 13, 2015, and the Court subsequently stayed this action,
pending the issuance of the contracting officer’s final decision (“COD”) on MIC’s equitable
adjustment claim. Order, dated Dec. 8, 2015 (docket entry no. 7); see generally Compl.

        On January 15, 2016, the United States Army Corps of Engineers (“USACE”) obtained
approval for a limited source justification to hire DOF as an expert consultant, pursuant to
Federal Acquisition Regulation 13.106-1. Yazbeck Decl. at Ex. C at 4-6; see also 48 C.F.R. §
13.106-1. On March 2, 2016—approximately five months after this litigation commenced—the
government retained the services of DOF. Yazbeck Decl. at Ex. G; see generally Compl.

        Subsequently, DOF provided the USACE with two reports—a dredging means and
methods report and a dredged material report—to address certain aspects of MIC’s claim. See
generally Yazbeck Decl. at Exs. I-J. The USACE’s contracting officer issued the COD on April
15, 2016. 2d Am. Compl. at ¶ 40.

        During the course of discovery, the government inadvertently produced certain
documents related to, among other things, DOF’s work under its consulting contract with the
USACE. See Yazbeck Supp. Decl. at Ex. 20; see also Def. Mot. at 1. On June 6, 2018, MIC


1
  The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s second amended
complaint (“2d Am. Compl.”); plaintiff’s motion to compel compliance with a subpoena duces tecum
(“Pl. Mot.”); the Declaration of Joseph A. Yazbeck, Jr. (“Yazbeck Decl.”); the government’s response
and opposition to plaintiff’s motion to compel and motion to compel the return of privileged material
(“Def. Mot.”); and the Supplemental Declaration of Joseph A. Yazbeck, Jr. (“Yazbeck Supp. Decl.”).
Except where otherwise noted, all facts recited herein are undisputed.



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issued a subpoena seeking 12 categories of documents from DOF related to DOF’s consulting
work (the “DOF Documents”). Yazbeck Decl. at Ex. A at 7-8. On June 14, 2018, the
government objected to MIC’s subpoena upon the grounds that the documents sought were
protected from disclosure by the attorney-client privilege and the work-product privilege. See
generally Yazbeck Decl. at Ex. C.

        B.      Procedural Background

        MIC filed a motion to compel compliance with the subpoena served on DOF on July 11,
2018. Pl. Mot. The government filed a response and opposition to MIC’s motion and a motion
to compel MIC to return or destroy certain documents and a motion to strike on August 21, 2018.
Def. Mot. On September 4, 2018, MIC filed a reply in support of its motion and a response and
opposition to the government’s motion to compel. Pl. Resp. On September 11, 2018, the
government filed a reply in support of its motion to compel. Def. Reply. The Court resolves
these pending motions.

III.    LEGAL STANDARDS

        A.      The Work-Product Privilege

        The work-product privilege protects against the discovery of documents “prepared in
anticipation of litigation or for trial by or for another party or its representative (including the
other party’s attorney, consultant . . . or agent).” RCFC 26(b)(3)(A); see also Upjohn Co. v.
United States, 449 U.S. 383, 398 (1981) (“Rule 26(b)(3) codifies the work-product doctrine
. . . .”). Specifically, this privilege “shelters the mental processes of the attorney, providing a
privileged area within which he can analyze and prepare his client’s case.” United States v.
Nobles, 422 U.S. 225, 238 (1975). The party asserting the work-product privilege bears the
burden of demonstrating that the privilege applies and was not waived, Evergreen Trading, LLC
ex rel. Nussdorf v. United States, 80 Fed. Cl. 122, 127 (2007), and the party must do so by setting
forth objective facts supporting the claim rather than mere conclusory statements, AAB Joint
Venture v. United States, 75 Fed. Cl. 448, 455 (2007).

        While the work-product privilege protects against the discovery of documents prepared in
anticipation of litigation, the fact that documents may have been created in anticipation of
litigation, or for trial, does not always create an impenetrable barrier for another party seeking to



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obtain the materials through discovery. See Eden Isle Marina, Inc. v. United States, 89 Fed. Cl.
480, 503-04 (2009); see also RCFC 26(b)(3)(A)(i)-(ii). For example, a party can waive the
work-product privilege either expressly or implicitly in generally the same manner that a party
can waive the attorney-client privilege. See Eden Isle Marina, 89 Fed. Cl. at 503-04. In
addition, even if there is no waiver, documents that would otherwise be protected by the work-
product privilege are discoverable in limited circumstances. RCFC 26(b)(3)(A)(i)-(ii). And so,
documents prepared in anticipation of litigation may be discovered if the requesting party shows
that it has substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means. Id.

       This Court has held that “[t]he threshold determination in a case involving a claim of
work product privilege is whether the material sought to be protected from discovery was
prepared in anticipation of litigation or was prepared in the ordinary course of business or for
other purposes.” Pacific Gas & Elec. Co. v. United States, 69 Fed. Cl. 784, 790 (2006) (citations
omitted). The Court has also held that “there are a ‘variety of approaches’ to determine whether
a document was created in anticipation of litigation . . . rather than created in the ordinary course
of business operations, or for other purposes.” Northrop Grumman Corp. v. United States, 80
Fed. Cl. 651, 654 (2008) (citing Pacific Gas & Elec., 69 Fed. Cl. at 790). In this regard, the
Court has recognized that:

       One approach . . . is to inquire into the ‘primary motivational purpose behind the
       creation of the document.’ Another approach is to inquire into whether a document
       was created because of anticipated litigation, and would not have been prepared,
       ‘but for the prospect of that litigation.’

Id. (quoting Pacific Gas & Elec., 69 Fed. Cl. at 791). Under either formulation, the crucial
inquiry is whether or not the document was “‘prepared in the ordinary course of business or . . .
would have been created in essentially similar form irrespective of the litigation.’” Id. (quoting
Pacific Gas & Elec., 69 Fed. Cl. at 798).

       B.      The Attorney-Client Privilege

       The purpose of the attorney-client privilege is to “encourage full and frank
communication between attorneys and their clients and thereby promote broader public interests
in the observance of law and administration of justice.” Upjohn Co., 449 U.S. at 389. And so,
this privilege “protects the confidentiality of communications between attorney and client made


                                                                                                     4
for the purpose of obtaining legal advice.” Genentech, Inc. v. U.S. Int’l Trade Comm’n, 122 F.3d
1409, 1415 (Fed. Cir. 1997). The party asserting the privilege bears the burden of demonstrating
the applicability of the privilege, and that burden is not “‘discharged by mere conclusory or ipse
dixit assertions.’” Evergreen Trading, 80 Fed. Cl. at 127 (quoting In re Bonanno, 344 F.2d 830,
833 (2d Cir. 1965)); see also In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450-51
(6th Cir. 1983) (reviewing decisions from various appellate courts on which party bears the
burden).

       Because “the privilege has the effect of withholding relevant information from the fact-
finder, [the privilege] applies only where necessary to achieve its purpose.” Fisher v. United
States, 425 U.S. 391, 403 (1976); see also Energy Capital Corp. v. United States, 45 Fed. Cl.
481, 484 (2000) (“The assertion of privileges is strictly construed . . . .”). And so, the assertion
of attorney-client privilege is only proper when:

       (1) the asserted holder of the privilege is or sought to become a client; (2) the person
       to whom the communication was made (a) is a member of the bar of a court, or his
       subordinate and (b) in connection with this communication is acting as a lawyer;
       (3) the communication relates to a fact of which the attorney was informed (a) by
       his client (b) without the presence of strangers (c) for the purpose of securing
       primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some
       legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4)
       the privilege has been (a) claimed and (b) not waived by the client.

Energy Capital Corp., 45 Fed. Cl. at 484-85 (quoting United States v. United Shoe Mach. Corp.,
89 F. Supp. 357, 358-59 (D. Mass. 1950)).

       Similar to the work-product privilege, the party holding the privilege may waive it with
regard to specific information when the privilege would otherwise be applicable. In re Seagate
Tech., LLC, 497 F.3d 1360, 1372 (Fed. Cir. 2007) (en banc), abrogated on other grounds by
Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1926 (2016). “If a court determines that a party
has waived the privilege with respect to a particular communication, that waiver generally
extends to all communications ‘relating to the same subject matter.’” Oasis Int’l Waters, Inc. v.
United States, 110 Fed. Cl. 87, 109 (2013) (quoting Fort James Corp. v. Solo Cup Co., 412 F.3d
1340, 1349 (Fed. Cir. 2005)).




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       C.      RCFC 26 And RCFC 37

       RCFC 26 addresses the duty to disclose in connection with civil discovery and this rule
provides, in relevant part, the following regarding claims of privilege:

       (B) Information Produced. If information produced in discovery is subject to a
       claim of privilege or of protection as trial-preparation material, the party making
       the claim may notify any party that received the information of the claim and the
       basis for it. After being notified, a party must promptly return, sequester, or destroy
       the specified information and any copies it has; must not use or disclose the
       information until the claim is resolved; must take reasonable steps to retrieve the
       information if the party disclosed it before being notified; and may promptly
       present the information to the court under seal for a determination of the claim. The
       producing party must preserve the information until the claim is resolved.

RCFC 26(b)(5)(B). RCFC 26 also explicitly prevents disclosure of communications between an
attorney and expert witness, unless they: (1) relate to compensation for the expert’s study or
testimony; (2) identify facts or data the attorney provided and that the expert considered in
forming his opinions; or (3) identify assumptions upon which the expert relied. RCFC
26(b)(4)(C). In addition, this rule also provides that “[o]rdinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).” RCFC 26(b)(3)(A).

       Lastly, RCFC 37 governs motions to compel and this rule specifically addresses the
payment of expenses following the resolution of such motions. The rule provides that:

       (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided
       After Filing). If the motion is granted—or if the disclosure or requested discovery
       is provided after the motion was filed—the court must, after giving an opportunity
       to be heard, require the party or deponent whose conduct necessitated the motion,
       the party or attorney advising that conduct, or both to pay the movant’s reasonable
       expenses incurred in making the motion, including attorney’s fees. But the court
       must not order this payment if:

            (i) the movant filed the motion before attempting in good faith to obtain
            the disclosure or discovery without court action;

            (ii) the opposing party’s nondisclosure, response, or objection was
            substantially justified; or

            (iii) other circumstances make an award of expenses unjust.


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        (B) If the Motion Is Denied. If the motion is denied, the court may issue any
        protective order authorized under RCFC 26(c) and must, after giving an opportunity
        to be heard, require the movant, the attorney filing the motion, or both to pay the
        party or deponent who opposed the motion its reasonable expenses incurred in
        opposing the motion, including attorney’s fees. But the court must not order this
        payment if the motion was substantially justified or other circumstances make an
        award of expenses unjust.

        (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted
        in part and denied in part, the court may issue any protective order authorized under
        RCFC 26(c) and may, after giving an opportunity to be heard, apportion the
        reasonable expenses for the motion.

RCFC 37(a)(5)(A)-(C).

IV.     LEGAL ANALYSIS

        A.      The Government Has Appropriately Invoked The Work-Product Privilege

        As an initial matter, the government persuasively argues that the DOF Documents are
covered by the work-product privilege. Evergreen Trading, 80 Fed. Cl. at 127 (explaining that
the party asserting the work-product privilege bears the burden of demonstrating that the
privilege applies and was not waived); see also AAB Joint Venture, 75 Fed. Cl. at 455
(explaining that the party asserting privilege must do so by setting forth objective facts
supporting the claim rather than mere conclusory statements). And so, the Court must DENY
MIC’s motion to compel.

        This Court has held that “[t]he threshold determination in a case involving a claim of
work product privilege is whether the material sought to be protected from discovery was
prepared in anticipation of litigation or was prepared in the ordinary course of business or for
other purposes.” Pacific Gas & Elec., 69 Fed. Cl. at 790 (citations omitted). To make this
determination, the Court may “inquire into the ‘primary motivational purpose behind the creation
of the document,’” or “whether a document was created because of anticipated litigation, and
would not have been prepared, ‘but for the prospect of that litigation.’” Northrop Grumman, 80
Fed. Cl. at 654 (quoting Pacific Gas & Elec., 69 Fed. Cl. at 791). And so, the crucial inquiry for
the Court here is whether the DOF Documents sought in MIC’s subpoena have been prepared in
the ordinary course of business, or would have been created in essentially similar form
irrespective of this litigation. Id.


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       The facts in this case show that the documents at issue have been created primarily for
the purpose of assisting the government with this litigation for several reasons. First, the
timeline of this litigation makes clear that the USACE decided to retain DOF as an expert
consultant in this matter several months after MIC commenced this litigation. In this regard, it is
undisputed that the government issued the justification to hire an expert consultant to review
MIC’s claim in January 2016, three months after this case was filed. Yazbeck Decl. at Ex. C,
pages 5-6.

       Second, the government’s source justification for DOF’s consulting contract states that
the reason for the authority granted to hire DOF as a consultant is that “this matter is urgent, as a
claim was filed with the Court of Federal Claims in October, 2015 . . . .” Yazbeck Decl. at Ex.
C at 4 (emphasis supplied). This justification further states that “[p]urchasing services from
[DOF] is necessary because they are the only reasonably available source with the skills and
expertise required to provide an expert report that will adequately support the Government’s
decision during the impending litigation.” Id. (emphasis supplied). And so, there can be no
genuine dispute that USACE hired DOF on March 2, 2016—five months after this litigation
commenced—and that the government and DOF were fully aware of the connection between the
COD and this litigation. See generally id.; Yazbeck Decl. at Ex. G.

       In addition, the documents provided to the Court also show that any work that DOF may
have performed to assist with the preparation of the COD issued on April 15, 2016, was
connected to the ongoing litigation of this case. In its motion to compel, MIC correctly argues
that the solicitation for DOF’s consulting contract and other documents attached as exhibits to
MIC’s motion to compel state that the scope of DOF’s consulting work includes assisting the
government in evaluating information pertinent to the COD. Pl. Mot. at 10-13; see, e.g.,
Yazbeck Supp. Decl. at Ex. 15, page 8 (“[T]he purpose of this [Performance Work Statement] is
to assist the Government in evaluating information pertinent to the [COD] request.”); Yazbeck
Supp. Decl. at Ex. 18, page 4; Yazbeck Supp. Decl. at Ex. 19, page 4 (“[DOF] was hired by the
USACE on March 2, 2016, to provide technical reports on specified topics in support of the
COD preparation.”); Yazbeck Decl. at Ex. H, page 2 (“DOF[’s] report is part of the Contracting
Officer Decision”). But, these documents must be read within the context of the government’s
justification to hire DOF and the timeline for this litigation.



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        In this regard, there is no dispute that the USACE’s contracting officer issued the COD
after the Court stayed this litigation for the purpose of obtaining a final decision on MIC’s
equitable adjustment claim. Order, dated Dec. 8, 2015 (docket entry no. 7). The government
also correctly argues that the fact that DOF may have worked on the COD does not preclude the
government from asserting the work-product privilege with respect to the DOF Documents, if the
primary motivational purpose for creating those documents was to assist the government in this
litigation. Def. Mot. at 11-12.

        Because the Court finds that the primary motivational purpose for creating the DOF
Documents was to assist the government in this litigation, the Court concludes that the
government appropriately invoked the work-product privilege with respect to the DOF meeting
minutes, DOF reports, and the other DOF Documents that MIC now seeks. And so, the Court
DENIES MIC’s motion to compel.2

        B.      MIC Has Not Fully Complied With RCFC 26

        The Court also agrees with the government that MIC has not met its obligations under
RCFC 26 to return, destroy, or file under seal, any documents that the government inadvertently
disclosed, once MIC received notice of the government’s privilege assertions. RCFC 26
provides, in relevant part, that:

        (B) Information Produced. If information produced in discovery is subject to a
        claim of privilege or of protection as trial-preparation material, the party making
        the claim may notify any party that received the information of the claim and the
        basis for it. After being notified, a party must promptly return, sequester, or
        destroy the specified information and any copies it has; must not use or disclose
        the information until the claim is resolved; must take reasonable steps to retrieve
        the information if the party disclosed it before being notified; and may promptly
        present the information to the court under seal for a determination of the claim.
        The producing party must preserve the information until the claim is resolved.

RCFC 26(b)(5)(B) (emphasis supplied). It is undisputed that, after the government inadvertently
produced certain documents related to DOF’s consulting work, the government notified MIC of



2
  Because the Court concludes the government has appropriately invoked the work-product privilege with
respect to all of the categories of documents sought by MIC in its subpoena to DOF, the Court does not
reach the issues of whether certain requested documents are also covered by the attorney-client privilege
and whether MIC prematurely seeks expert discovery.


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its objection to the disclosure of these documents. Def. Mot. at 5-6; Pl. Resp. at 11-13; Def.
Reply at 2. A letter to MIC’s counsel dated June 14, 2018, also states that the government
objects to MIC’s subpoena to DOF upon multiple grounds, including attorney-client privilege
and work-product privilege. See generally Yazbeck Decl. at Ex. C.

       MIC acknowledges that, after being notified of the government’s privilege assertions, it
did not return or destroy the documents that the government inadvertently disclosed. Pl. Resp. at
11-13. MIC, nonetheless, argues that it had no obligation to do so because the parties stipulated
to other arrangements regarding the treatment of these documents. Id.; see also RCFC 29. But,
even if true, MIC does not explain why it failed to file these documents under seal when MIC
filed its motion to compel, as required by RCFC 26. Pl. Resp. at 11-13; see also RCFC
26(b)(5)(B). Given this, the Court finds that MIC has not fully complied with its obligations
under RCFC 26. And so, the Court GRANTS the government’s motion to compel and
GRANTS the government’s motion to strike Exhibits H, I, J, and K to the Yazbeck Declaration.

       C.      The Court Holds In Abeyance The
               Government’s Request For Reasonable Expenses

       As a final matter, the government has requested that the Court order MIC to pay its
reasonable expenses in connection with preparing a response to MIC’s motion to compel and the
government’s cross-motion, pursuant to RCFC 37. See Def. Mot. at 16. RCFC 37(a)(5)
provides that, if a motion to compel is granted, the Court must, after giving an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both, to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees. RCFC 37(a)(5)(A). This rule similarly provides that, if the
motion to compel is denied, the Court must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both, to pay the party or deponent who opposed the
motion its reasonable expenses incurred in opposing the motion, including attorney’s fees.
RCFC 37(a)(5)(B). But, RCFC 37(a)(5) also requires that, if a motion to compel is granted, the
Court must not order such a payment if: (1) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery without court action; (2) the opposing party’s
position was substantially justified; or (3) other circumstances make an award of expenses
unjust. RCFC 26(a)(5)(A)(i)-(iii). Similarly, if a motion to compel is denied, the Court must not



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order such a payment if the motion was substantially justified, or other circumstances make an
award of expenses unjust. RCFC 37(a)(5)(B).

           During the September 13, 2018, hearing on the parties’ motions, MIC requested the
opportunity to further brief the issue of whether it should be required to pay the government’s
reasonable expenses under RCFC 37. And so, the Court HOLDS IN ABEYANCE the
remaining issue of whether the Court should grant such relief pending additional briefing by the
parties.

V.         CONCLUSION

           In sum, the government has shown that it appropriately invoked the work-product
privilege with respect to the documents requested in MIC’s subpoena to DOF. The undisputed
facts in this case also show that MIC did not fully comply with RCFC 26, when it failed to file
certain exhibits attached to its motion to compel under seal. And so, for the foregoing reasons,
the Court:

              1. DENIES MIC’s motion to compel;

              2. GRANTS the government’s motion to strike;

              3. GRANTS the government’s motion to compel; and

              4. HOLDS IN ABEYANCE the government’s request for reasonable expenses.

           It is FURTHER ORDERED that:

              1.    MIC shall RETURN OR DESTROY the DOF reports and meeting minutes that
                   the government inadvertently produced during fact discovery on or before
                   September 21, 2018.
              2. The Clerk is DIRECTED to STRIKE Exhibits H, I, J, and K to the Yazbeck
                 Declaration (docket entry no. 33).
              3. In addition, the Court, with the assistance of the parties, sets the following
                 schedule for filing of the parties’ supplemental briefs on the issue of whether MIC
                 should pay the government’s reasonable expenses:
                      a. On or before October 1, 2018, MIC shall file an opening brief;
                      b. On or before October 15, 2018, the government shall FILE a response;
                         and
                      c. On or before October 19, 2018, MIC shall FILE any reply.


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   4. Lastly, the Court, with the assistance of the parties, modifies the Scheduling
      Order, dated May 17, 2018, as follows:
           a. Close of fact discovery.              December 13, 2018
           b. On or before December 13, 2018, the parties shall FILE a joint status
           report advising the Court of the status of fact discovery and proposing a
           schedule for further proceedings in this matter, including, if warranted, a
           schedule for expert discovery.
Each party to bear its own costs.

IT IS SO ORDERED.



                                          s/ Lydia Kay Griggsby
                                          LYDIA KAY GRIGGSBY
                                          Judge




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