KBR blasts ‘Parade Of Falsehoods’ In Soldiers’ burn pit lawsuit

Law360 — KBR assailed the discovery efforts of a group of soldiers in Maryland federal court Friday, arguing their motion to compel on already-set timelines is simply trying to pad the record of the multidistrict litigation, over hazardous wastes allegedly burned in open-air pits at military bases, with “frivolous” discovery process complaints.

The military contractor is doing everything in its power to meet an Aug. 31 deadline to hand over data on 30 persons of interest, or POIs, KBR said, arguing the process is complicated by data security issues with the government beyond its control and by the sheer amount of data involved: roughly 3 terabytes.

“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.