“Plaintiffs either do not understand these facts or do not want to understand them. Plaintiffs selectively pull snippets and sound bites out of context from lengthy records in separate, unrelated proceedings,” KBR said in opposing the June 13 motion to compel. “The purpose of plaintiffs’ motion is not to compel KBR to do something — indeed, as KBR has repeatedly informed the court, KBR is already doing everything within its power to produce these data as fast as possible. The purpose of plaintiffs’ motion is simply to pad the record with frivolous ‘complaints’ about the discovery process in this case.”

The soldiers’ discovery modus operandi, KBR continued, “is to demand the sun, the moon, and all the stars, and then cry foul when they are denied a few constellations.”

The multidistrict litigation alleges that KBR burned waste — including lithium batteries, plastic foam, paints, solvents, asbestos and other hazardous materials — in open-air burn pits on military bases in Iraq and Afghanistan without taking safety precautions. The soldiers and other military personnel who were stationed at the bases also say they were harmed by the company’s inability to properly operate water purification facilities at some military bases.

In pressing for the motion to compel last week, the soldiers argued that KBR has spent years trying to evade the production of relevant emails for discovery even as it relies on “fact-intensive” defenses based on jurisdictional questions — the discovery fight here is based purely on whether the court even has the right to hear the case at all. The Aug. 31 deadline covers a “limited email universe,” the soldiers said at the time.

KBR countered Friday that the plaintiffs are pursuing a “mischievous motion to compel” that is “a parade of falsehoods.” KBR contended that it must deal with data security issues created by government employees accidentally sending the contractor classified emails in a “data spill,” emails that must be protected in discovery via a “new and unprecedented” pre-screening process.

The contractor argued that it has been upfront with the issues complicating its ability to meet the Aug. 31 deadline and said the judge should focus on the schedule at a hearing on the matter scheduled for Thursday.

Nor has KBR tried to evade discovery as the soldiers contend, according to the brief.

“KBR has presented its view that email discovery is unlikely to yield useful or jurisdictionally relevant information that would add materially to the record (and that could, for example, alter the sworn testimony of senior military commanders),” it said. “But there is no factual support for plaintiffs’ repeated claims that KBR somehow devised an elaborate plan to prevent them from getting emails.”

It would be “silly and illogical” for KBR to try and put off discovery, it said, because the company has every incentive to try and resolve this lawsuit and others as quickly as it can. A “massive volume” of electronic discovery has already been handed over, KBR said, noting that more than two million electronic document pages that have been produced so far.

The soldiers hit back with a reply brief Monday accusing KBR of failing to comply with content management order, or CMO, deadlines, in good faith.

“KBR continues to mislead the court by claiming delays attributable to the data spill are ‘entirely outside of KBR’s control,’” they said. “Yet KBR has not — and cannot — introduce evidence rebutting the sworn declarations of [Defense Security Services] officials, which reveals that KBR’s own misconduct led to the lengthy delays.”

KBR has already pulled some of the POI’s data for other litigation, the soldiers said, arguing the warnings of a 3 terabyte data dump are based on “amorphous estimates.” Nor did KBR take prompt action from the data spill and in fact made the matter worse, according to the brief, which also argued that the company failed to meet its security obligations and misled the government on its compliance with those requirements.

A representative for KBR did not immediately respond Monday to a request for comment.

In Escobar, the Supreme Court preserved a potent theory of FCA liability called “implied certification.” The theory holds that companies implicitly certify compliance with regulations when seeking payment from the government and may commit fraud if they’re actually out of compliance.

In addition to backing the theory, the justices said June 16 that violated regulations do not have to be explicit conditions of payment to trigger liability, although the court also put the “materiality” of FCA violations — defined as something “capable of influencing” government payment decisions — at a “demanding” standard that doesn’t cover “minor or insubstantial” noncompliance.

Triple Canopy’s Fourth Circuit loss in January 2015 had turned on implied certification. The company had argued in seeking high court review last June that the circuit court took an extreme view of the provision that would allow claims to be brought under the statute for any material breach of a government contract, even without proof that payment was conditioned on meeting the allegedly breached criterion.

The government had argued that allegedly falsified marksmanship scores for two guards TCI hired at Al Asad Air Base in Iraq counted as false claims because the guards were unqualified and therefore the reimbursement for their payment was fraudulent. The company countered that payment was not specifically predicated on the marksmanship scores and that no government agent ever reviewed the scorecards.

Finding that the alleged falsifications merited FCA claims brought by whistleblower Omar Badr was an extreme reading of the implied certification liability provision in the statute, the contractor told the Supreme Court last year.

“The Escobar opinion strengthens the defenses to implied certification false claims cases available to contractors at trial and on summary judgment, and instructs lower courts to rigorously apply the scienter and materiality requirements for pleading sustainable FCA allegations, so we look forward to the remand to the Fourth Circuit,” Triple Canopy attorney Tara M. Lee of DLA Piper LLP told Law360 in an email Monday.

An attorney for Badr told Law360 Monday that he was confident the allegations will survive Escobar. It’s critical that the court said implied certification claims could go forward, Deepak Gupta of Gupta Wessler PLLC said. Gupta noted the court’s stringent requirements for materiality but said he was confident the allegations meet those standards, pointing to the claims of bad marksmanship.

“If that’s not material, it’s hard to know what is,” Gupta said.

Gupta noted that summary remand is standard Supreme Court procedure in similar follow-on cases. The only other plausible outcome would have been a straight up denial of Triple Canopy’s cert petition, he said.

Gupta also said that the Escobar ruling itself may have had this case in mind, pointing to a discussion positing that a defendant can have “actual knowledge” that a certain regulatory requirement is material even if the government does not expressly call that mandate a condition of payment.

“If the government failed to specify that guns it orders must actually shoot, but the defendant knows that the government routinely rescinds contracts if the guns do not shoot, the defendant has ‘actual knowledge,'” Justice Clarence Thomas said for the court earlier this month. “Likewise, because a reasonable person would realize the imperative of a functioning firearm, a defendant’s failure to appreciate the materiality of that condition would amount to ‘deliberate ignorance’ or ‘reckless disregard’ of the ‘truth or falsity of the information’ even if the government did not spell this out.”

In its early 2015 ruling, the Fourth Circuit found that a Virginia federal court had incorrectly dismissed two counts against TCI for violating the FCA, while upholding its dismissal of four other claims brought by Badr, a medic who worked on the Al Asad base with the guards in Iraq, holding that they were too vague to be valid.

A three-judge panel agreed with the government’s claims that the guards were hired under false pretenses — the understanding that they were qualified — and that the fake marksmanship scorecards provided by TCI qualify as false statements and violate the FCA.

The district court had ruled in June 2013 that the government didn’t show that it had specifically relied on allegedly altered marksmanship test cards when it fulfilled invoices, and failed to prove that the guards’ lackluster shooting abilities rendered them useless.

The U.S. Department of Justice declined comment and a representative for Triple Canopy did not immediately respond Monday to a press inquiry.

TCI is represented by Tara M. Lee, Joseph C. Davis, Courtney G. Saleski and Paul D. Schmitt of DLA Piper LLP.

Badr is represented by Deepak Gupta of Gupta Wessler PLLC.

The government is represented by the Solicitor General’s office.

The case is Triple Canopy Inc. v. USA ex rel. Omar Badr, case number 14-1440 in the U.S. Supreme Court.

— Additional reporting by Jeff Overley and Jacob Fischler. Editing by Ben Guilfoy.