Pennington v. Tetra Tech, Inc.

Background

This omnibus order resolved pending discovery disputes in several related cases. The court applied Federal Rule of Civil Procedure 26(b)(1), which generally permits discovery of nonprivileged information relevant to a claim or defense and proportional to the case’s needs. The court also applied Rule 26(b)(2)(C), which requires limits on discovery that is cumulative, duplicative, obtainable from a less burdensome source, already available to the requesting party, or outside the permitted scope.

Rulings on Discovery Requests

- The Side One parties’ request to reconvene Tina Rolfe’s deposition for two additional hours was denied. The court found that the parties’ common-interest showing was adequate, that speculation about whether Rolfe testified truthfully did not justify reopening the deposition, and that her health issues supported denying the request. - The request to reproduce documents clawed back during or after George Chiu’s deposition and continue that deposition was denied. The court found that Tetra Tech adequately supported its claims of work-product protection and attorney-client privilege. - The Side One parties’ request to compel Dan Batrack’s deposition was granted. The court found evidence that Batrack was personally involved in the relevant facts and likely had first-hand knowledge. The parties were directed to schedule the deposition promptly. - Five Point, CP, and the Bayview plaintiffs’ request to compel amended interrogatory responses about Tetra Tech’s position concerning alleged fraudulent conduct by Justin Hubbard and Stephen Rolfe was denied. The court found no need to clarify Tetra Tech’s position and noted that the requesting parties had other opportunities to discover the underlying facts. - The request for temporary use of a Tetra Tech computer and login credentials to examine Tetra Tech’s environmental database was denied. The court stated that Tetra Tech could not use at trial evidence it had not produced and warned that later-discovered production failures could result in sanctions, including case-terminating sanctions and professional-conduct sanctions against responsible lawyers. - The relators’ request for discovery concerning the fairness hearing on the settlement between the United States and Tetra Tech EC, Inc. was denied. The court stated that the False Claims Act did not contemplate that discovery and that the fairness hearing had already occurred. The court said it would address fairness and allocation issues in a separate order. - The Side One parties’ request to overrule privilege objections and instructions not to answer at Stephen Rolfe’s deposition was denied under Rules 26 and 37. - Five Point’s request to reconvene the deposition of its Rule 30(b)(6) witness, Emile Haddad, was denied. - Regarding original chain-of-custody documents, the court directed the parties to conduct a limited inspection of samples held by the United States at Hunters Point and permitted them to update the court as warranted. - Five Point and CP’s request to compel Tetra Tech, Inc. to produce board-related materials was denied. The court stated that Tetra Tech would be held to its representation that it had produced all relevant, nonprivileged responsive documents. - Five Point’s request to compel additional production concerning insurance policies and related communications was denied, based on Tetra Tech’s representations about its production and commitment to supplement it. - The request to reopen Tetra Tech’s Rule 30(b)(6) depositions was not warranted. The court stated that a request to exclude evidence could be raised again in a pretrial motion. - Five Point’s request to compel additional interrogatory responses about the number of interrogatories allowed to Five Point and CP was denied for lack of good cause at that stage of the case. - The request to compel additional interrogatory responses from the United States about the same issue was denied for the same reasons. - Five Point’s request to compel production of an email clawed back during Andy Bolt’s deposition and to reopen that deposition was denied. The court found Tetra Tech’s representations sufficient to place the email within the work-product doctrine, which protects litigation-preparation materials created for attorneys. - Tetra Tech’s request to compel documents concerning Five Point’s environmental consultant, Geosyntec Consultants, Inc., was denied. The court found Five Point’s representations sufficient to place the documents within the work-product doctrine. - Tetra Tech’s request for additional interrogatory responses concerning Five Point’s damages evidence was denied as moot because expert discovery had occurred and the adequacy of the damages evidence could be tested at trial. The United States’ identical request was denied for the same reasons. - Tetra Tech’s request to compel a further response to Interrogatory No. 18 about Five Point’s alleged economic relationships was denied. The court found Five Point’s response sufficient. - Tetra Tech’s request for information about the facts supporting Lennar’s damages expert’s opinions was denied as moot. - The United States’ request for a protective order concerning deposition notices for former Assistant United States Attorney Philip Kearney, former Defense Criminal Investigative Service Investigator George Wright, and former Nuclear Regulatory Commission Investigator Jerome Bigoness was granted. The depositions would not be taken because the court found them unnecessary. - Tetra Tech and the United States were not required to answer the 3,783 requests for admission served by Five Point concerning document authenticity. The court expected the parties to resolve authentication issues before trial.

Sanctions and Confidential Records

- Tetra Tech and the United States’ Rule 37 motion for evidentiary and monetary sanctions based on CP’s alleged failure to appear at a Rule 30(b)(6) deposition and the testimony limits imposed by Five Point’s witnesses was denied. The court found that the record did not establish a sanctionable failure by a party to appear at its own deposition. - A separate Rule 37 motion seeking evidence-preclusion and adverse-inference sanctions based on the refusal to produce or provide alternative dates for four fact witnesses was also denied. The court noted that the witnesses were not employed by Five Point when the notices were served and found that sanctions were not established as appropriate under Rule 37(d). - The United States’ request for destruction of inadvertently produced presentence reports for Justin Hubbard and Steven Rolfe was granted. The parties and document vendors were ordered to destroy copies and notes or information about the reports, confirm destruction in writing, and take reasonable steps to retrieve materials or notify the United States if the reports or their contents had been disclosed.

Disposition

The court stated that additional letters concerning expert discovery would be addressed as warranted with the pending expert motions under Evidence Rule 702. Those requests were administratively terminated in the interim. The court declared that discovery was closed and that no additional discovery disputes would be entertained. Judge James Donato entered the order on May 7, 2025.