           In the United States Court of Federal Claims
                                     Filed: January 29, 2018


        IN RE DOWNSTREAM ADDICKS
        AND BARKER (TEXAS) FLOOD-
        CONTROL RESERVOIRS                            Sub-Master Docket No. 17-9002L



        THIS DOCUMENT APPLIES TO:

        ALL DOWNSTREAM CASES



                            CASE MANAGEMENT ORDER NO. 5

    On January 26, 2018, the parties filed a Joint Motion For Entry Of Case Management Order
No. 5, together with a proposed Order. ECF No. 25. To promote the efficient administration of
justice, the January 26, 2018 Joint Motion is granted in part.1 Accordingly, it is hereby
ORDERED:

    1. This Order applies to all cases presently and subsequently filed in this court that, pursuant
       to Management Orders 1, 2, 3, and 4,2 are identified as downstream cases in In re
       Downstream Addicks and Barker (Texas) Flood-Control Reservoirs, Sub-Master Docket
       No. 17-9002L (the “Downstream Sub-Master Docket”). This Order is intended to
       supplement, and not to replace, the court’s prior Orders.




    1
        The court made the following changes to the January 26, 2018 proposed Order: (1)
Paragraph 5: a plaintiff may amend his or her Initial Fact Sheet, pursuant to Rule of the United
States Court of Federal Claims (“RCFC”) 26(e); (2) Paragraph 8: the parties are directed to file a
Joint Proposed Short Form Complaint; (3) Paragraph 9: the court will approve the Short Form
Complaint procedure agreed to by the parties; and (4) Paragraph 11: the Government must comply
with the deadlines set forth in Case Management Order No. 3 (ECF No. 2).
2
      See In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-
3000L, ECF No. 1 (October 31, 2017 Management Order 1); ECF No. 103 (December 5, 2017
Management Order 2 (Order Establishing Sub-Master Docket for Upstream Claims)); ECF No.
104 (December 5, 2017 Management Order 3 (Order Establishing Sub-Master Docket for
Downstream Claims)); ECF No. 120 (December 21, 2017 Management Order 4).
    2. Downstream Co-Lead Counsel3 advised the court that they would file a consolidated and
       amended complaint in the Downstream Sub-Master Docket by January 16, 2018. One
       downstream Master Complaint was filed.

    3. On or before January 30, 2018, all plaintiffs named in the Master Complaint will serve on
       the Government, through Downstream Co-Lead Counsel, a completed Initial Fact Sheet
       (the “Initial Fact Sheet”).

    4. On January 30, 2018, all plaintiffs not named in the Master Complaint will serve on the
       Government, through Downstream Co-Lead Counsel, a completed Initial Fact Sheet in the
       form of the exemplar Initial Fact Sheet attached as Attachment A.

    5. Each plaintiff, whether named in the Master Complaint or not named in the Master
       Complaint, will provide a signed version of their Initial Fact Sheet, consistent with the
       requirements of RCFC 33(b)(5), within 30 days of submission of the Initial Fact Sheet. For
       any plaintiff, their signed Initial Fact Sheet: (1) will be treated as answers to interrogatories;
       (2) can be used to the extent allowed by the Federal Rules of Evidence, pursuant to RCFC
       33(c); and (3) may be amended, pursuant to RCFC 26(e).

    6. Plaintiffs whose cases are filed after January 30, 2018 will serve on the Government,
       through Downstream Co-Lead Counsel, a completed Initial Fact Sheet no later than 30
       days after the date the case was filed.

    7. All complaints other than the Master Complaint, whether pre-existing or hereafter filed,
       are administratively stayed except for service of the Initial Fact Sheet, referenced above,
       pending further order of the court. Plaintiffs in all stayed actions are hereby relieved of the
       responsibility to: (i) provide initial disclosures pursuant to RCFC 26(a)(1); (ii) respond to
       the Government’s motions for more definite statement; and (iii) respond to the
       Government’s motions to dismiss pursuant to RCFC 12. The claims of any plaintiffs later
       added to the Master Complaint by amendment are not stayed and such plaintiffs must meet
       any discovery and other obligations under the RCFC, including providing initial
       disclosures and responding to subsequent discovery requests.

    8. Downstream Co-Lead Counsel and counsel for the Government will meet and confer for
       the purpose of drafting a mutually-agreeable Short Form Complaint adopting the Master
       Complaint. On or before Friday, February 2, 2018, Downstream Co-Lead Counsel and
       counsel for the Government are directed to provide the court with an agreed proposed Short
       Form Complaint.


3
        When used herein, the term Downstream Co-Lead Counsel means counsel appointed as
“Co-Lead Counsel” and “Of Counsel” for downstream plaintiffs in the court’s November 20, 2017
Orders. See In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-
3000L, ECF Nos. 67, 69 (Fed. Cl. Nov. 20, 2017). When used herein, the term Upstream Co-Lead
Counsel means counsel appointed as “Co-Lead Counsel” and “Of Counsel” for upstream plaintiffs
in the court’s November 20, 2017 Orders. See In re Addicks and Barker (Texas) Flood-Control
Reservoirs, Master Docket No. 17-3000L, ECF Nos. 68, 70 (Fed. Cl. Nov. 20, 2017).
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9. Once the court approves the Short Form Complaint procedure agreed to by the parties,
   presently and subsequently-filed cases may adopt the Master Complaint by filing a Short
   Form Complaint in the Downstream Sub-Master Docket. Nothing herein will prevent an
   attorney from filing a single Short-Form Complaint on behalf of multiple plaintiffs.

10. The Government need not answer any complaint or newly-filed complaint other than the
    Master Complaint, or specifically respond to any claim not asserted in the Master
    Complaint.

11. The Government’s filings under RCFC 12, including any motions to dismiss or answer,
    will apply equally to any complaint adopting the allegations of a Master Complaint.
    Pursuant to Case Management Order No. 3, the Government will file any Motion To
    Dismiss, pursuant to RCFC 12(b) on or by February 15, 2018 (ECF No. 2, Ct. Att. A at 3),
    and an Answer, pursuant to RCFC 7(a)(2) on or by February 28, 2018 (ECF No. 2, Ct. Att.
    B at 3).

12. Downstream Co-Lead Counsel will facilitate, coordinate, and effect all communications
    with the Government on behalf of all plaintiffs in this consolidated action, all pro se
    plaintiffs in this consolidated action, and all attorneys who have not been designated as
    Downstream Co-Lead Counsel in this consolidated action. Attorneys who have not been
    designated Downstream Co-Lead Counsel are directed to communicate with Downstream
    Co-Lead Counsel, and not the Government or the court, concerning discovery, case
    management, scheduling, and all other case-related matters. In the event that an attorney
    who has not been designated Downstream Co-Lead Counsel seeks to submit a motion or
    any other filing to the court, such attorney must first request and obtain leave from the
    court.

13. All discovery on behalf of plaintiffs in this consolidated action must be served by
    Downstream Co-Lead Counsel. Downstream Co-Lead Counsel will provide, facilitate, or
    coordinate the use of translators, if necessary. All discovery on behalf of the Government
    in this consolidated action need be served only to Downstream Co-Lead Counsel.

14. Service upon Downstream Co-Lead Counsel is accomplished by serving each of the
    following via electronic mail, file sharing link, United States Mail and/or another method
    agreed by the parties:

           Derek Potts at dpotts@potts-law.com
           Rand Nolen at Rand_Nolen@fleming-law.com
           Richard Mithoff at RMithoff@mithofflaw.com
           Jack McGehee at jmcgehee@lawtx.com
           David Frederick at dfrederick@kellogghansen.com
           William Consovoy at will@consovoymccarthy.com

15. All requests for discovery, including but not limited to interrogatories and requests for
    production, should, to the extent possible, be jointly submitted from Downstream Co-Lead
    Counsel and Upstream Co-Lead Counsel to avoid duplicative requests of documents,
    streamline the response process, and ensure Downstream Co-Lead Counsel and Upstream
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   Co-Lead Counsel receive the same information. Downstream Co-Lead Counsel will
   coordinate and serve upon the Government, on behalf of all plaintiffs, responses to any
   discovery requests served by the Government.

16. Downstream Co-Lead Counsel will cross-notice all depositions in both the Downstream
    Sub-Master Docket and In re Upstream Addicks and Barker (Texas) Flood-Control
    Reservoirs, Sub-Master Docket No. 17-9001L, and coordinate the conduct of depositions
    among Downstream Co-Lead Counsel and Upstream Co-Lead Counsel to avoid duplicate
    examination.

17. In any case filed and consolidated into the Downstream Sub-Master Docket after entry of
    this Order, Downstream Co-Lead Counsel will provide the attorney representing the
    plaintiff(s) or, if the plaintiff(s) is proceeding pro se, the plaintiff(s), a copy of: (a) this
    Order, (b) the operative Master Complaint, (c) the template for a Short-Form Complaint,
    and (d) an Initial Fact Sheet. A completed Initial Fact Sheet on behalf of each plaintiff will
    be served on the Government within 30 days of consolidation.

   IT IS SO ORDERED.

                                                    s/ Susan G. Braden
                                                    Susan G. Braden
                                                    Chief Judge




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