Monday, December 7, 2015

KBR’s Electronically Stored Information About Burn Pits at Issue

On Friday, December 4, 2015 the Court trying the Burn Pit Lawsuit held a hearing on the scope of KBR’s requirement to produce Electronically Stored Information (ESI). The Court did not yet reach a determination and has re-listed the matter on Monday, December 14, 2015. The Court requested that the US Attorney appear in an effort to assist in defining the scope of the production.

The injured veterans and their families (Plaintiffs) seek discovery that they need respond to KBR’s motions.  The information sought by the Plaintiff’s includes internal KBR documents such as emails and other electronically-stored information.  By contrast, KBR is seeking to limit any discovery into KBR’s internal records, and instead direct Plaintiffs to conduct discovery only from the military.

On August 10, 2015, the Court held a hearing and addressed the scope of discovery.  The Court expressly ruled from the bench that KBR had to turn over emails and other electronically-stored internal KBR business records:  

“I’m not going to leave too many things to the imagination.  I want to establish a process whereby the KBR corporate documents that are already in digital format, that we will establish a process whereby the plaintiffs can give a list of search terms to the defense and the defense will undertake that search and procure those documents subject to the traditional, you know, privilege documents process that would allow you to hold back, at have isolated those documents that we may need to have a judicial review of as to whether they’ve been properly withheld or not.”  See Tr. of Aug. 10, 2015 Hrg. at 75. The Court also noted that the advance of technology has made such productions far less onerous on the producing party.  See id. at 13. 

KBR has attempted to persuade the Court to exclude e-mails from the scope of the Court’s order, arguing that it would be burdensome for KBR to search for e-mails.  The Court had specifically overruled KBR’s efforts to exclude e-mails, commenting that, there is “a treasure trove in most cases with emails.  So I’m not going to exclude that.”  See id. at 77.  

The Court had ordered the parties to confer and develop a joint Case Management Order that reflected the Court’s ruling from the bench. The parties did not come to an agreement and the Court is now seeking to resolve the issue of the scope of electronically stored information (ESI).

Plaintiffs request that the Court issue a new case management order that:
  1. permits Plaintiffs to conduct discovery using the normal discovery tools 
  2. (interrogatories, document requests, requests for admissions); orders KBR to permit Plaintiffs to search Documentum; and 
  3. requires KBR to turn over available organizational charts, and then cooperate with Plaintiffs’ requests for emails to and from KBR employees involved in waste management.    

Also on-going is the preparation of a Motion made by KBR to define their involvement, if any, in the design, operation and control of the burn pit at the Balad Base in Iraq. The Court has schedule a hearing on the Balad Burn Pit dispute for January 19, 2016.

The consolidated lawsuit is now proceeding in the US District Court against KBR, a government contractor. The lawsuit alleges that KBR exposed, American service members and private civilian contract workers, to dangerous and toxic fumes from its unauthorized use of open-air surface burn pits. The exposed individuals and their families brought a lawsuit against KBR for its allegedly improper use of the burn pits and for failing to warn veterans and civilians of the hazards of being exposed. 

The cases allege that prolonged exposure to the burn pits' smoke, ash and fumes that may have resulted in chronic diseases, risk of future illness and death. The lawsuit alleges that KBR burned large amounts of unsorted waste, including hazardous waste, medical waste, and human waste, at military facilities in Iraq and Afghanistan.

The cases In re KBR Inc, Burn Pit Litigation, have been consolidated, and are venued in U.S. District Court for the District of Maryland, Greenbelt Division, before Judge Roger W. Titus.