I have written before on the lawsuit by National Guardsman against KBR regarding the alleged their poisoning by exposure to sodium dichromate at Qarmat Ali project. So here is an update taken from the most recent filings submitted by the plaintiffs' lawyers in Texas and Oregon.
Evidently KBR is being uncooperative and is refusing to provide documents required under the legal discovery process, or so the plaintiff lawyer's allege.
What KBR knew about the toxic poisons at KBR's Qarmat Ali project in 2003 and how long its knowledge was concealed from the men on the site, including Plaintiffs, is the central issue in this case. KBR defendants have repeatedly pointed to the comprehensive nature of prior discovery in related matters as grounds to block discovery in this case, an attempt already rejected by the Court. What became apparent when the United States Army Litigation Command in May 2010 provided to Plaintiffs a number of reports (including "SITREPS" indicating weeks of previously undisclosed site assessments by KBR at Qarmat Ali from the end of March 2003 onward) is that KBR's discovery responses in both this and related discovery have been significantly underwhelming. This is particularly true for the initial April-May 2003 site assessments, for which KBR's witnesses also claim a memory "black hole" in testimony taken as recently as last month in this case. For more than three months, Plaintiffs have repeatedly asked KBR, Inc. to produce the remaining "SITREPS" and "site assessments" its employees made at Qarmat Ali. Consistent with its previous conduct in this case, KBR has not only failed to comply with Plaintiffs' request but has unilaterally ceased providing Plaintiffs with discovery since September 24, 2010. This Court should not permit KBR to interfere with the truth-exposing provisions of the Federal Rules of Civil Procedure and should compel KBR to provide Plaintiffs with their requested discovery.
Better yet is this exchange:
B. Rod Kimbro's June 21, 2003 Email
KBR's failure to produce Rod Kimbro's June 21, 2003 email is another demonstration of its refusal to abide by the Federal Rules of Civil Procedure. Plaintiffs deposed Rod Kimbro ("Kimbro"), who is a former employee of KBR and had conducted environmental safety work at Qarmat Ali. During Kimbro's deposition, Kimbro revealed that he had retained a copy of a June 21, 2003 email raising a red flag to KBR's managers about the presence of sodium dichromate at Qarmat Ali and the danger resulting therefrom. Not only had KBR failed to disclose Kimbro's email in response to Plaintiffs' discovery requests but, despite the fact that Kimbro had specifically provided KBR's attorney with a copy of his email two days prior to his deposition,
KBR only provided Plaintiffs with a copy of Kimbro's email after its existence was disclosed by Kimbro during his deposition.
The manner in which Kimbro's email was disclosed is indicative of subterfuge:
Answer: I had prepared a number of reports. I also had a number of e-mails that I had sent to Dr. Lee concerning Qarmat Ali. And when I left KBR's employment I kept copies of those. And I provided copies of those to KBR's attorneys and we discussed those documents.
Question: When did you provide those documents, e-mails that you told us about?
Answer: I don't know the exact day, but it was within the last month.
Mr. Doyle: Mr. Jones, has every single one of those documents been provided?
Mr. Jones: We produced them to you, yes. I don't know what the Bates label range is. He may have given me a document or two yesterday that was new to me.
Mr. Doyle: Okay. Have we been provided that or is there a reason why we haven't been provided it right now?
Mr. Jones: Because you have - don't have a document request for this deposition.
Mr. Doyle: Okay.
Mr. Jones: But we produced to you --
Mr. Doyle: Just so we're clear -
Mr. Jones: Right.
Mr. Doyle: -- are you really telling us that materials this gentleman evaluated working KBR Qarmat Ali are not encompassed within the outstanding discovery requests that were required to be supplemented timely?
Mr. Jones: No. I'm not saying that. What I'm saying is, we have produced all the documents that he gave us to - what was it - a month or two ago that's been produced to you.
Mr. Doyle: Okay. You just mentioned some additional documents.
Mr. Jones: Right. If he gave us anything new, I haven't produced that to you yet.
Mr. Doyle: Okay. Is there a reason why we can't get a copy now?
Mr. Jones: No.
Mr. Doyle: Are you going to give us a copy?
Mr. Jones: Yes. We'll have to make copies. Okay?
Mr. Doyle: Is there a reason why we're waiting until the middle of the deposition to get it if you've had this for some period of time?
See Pls' Ex. C, Kimbro Dep. pp. 20-22 (emphasis added).
Aside from the fact that Kimbro's email that was necessarily on KBR's electronic server and Kimbro "may have" provided this email to KBR a couple of days prior to his deposition, there are a number of aspects of KBR's conduct that indicate that it was attempting to undermine improperly Plaintiffs' discovery efforts. Most notably, as demonstrated by the fact that KBR's attorney had not made copies of Kimbro's June 21, 2003 email that he "may have" had in his possession, KBR had no intention of disclosing Kimbro's email to Plaintiffs.
Finally, even a cursory examination of Kimbro's email demonstrates its importance to this litigation and KBR's motive to hide it. After Kimbro notes that Mark Daniels ("Daniels") had asked him to evaluate the use of sodium dichromate at Qarmat Ali, Kimbro notes:
Sodium dichromate has been replaced as a commonly utilized corrosion inhibitor in the US due to its toxicity and disposal issues. Sodium dichromate is a strong irritant and a potential carcinogen. The MCL for Total [sic] chromium in drinking water is 0.1 mg/L. The MSDS for sodium dichromate and materials contaminated with sodium dichromate would be considered hazardous waste in the US.
During our inspection of the chlorine tanks at the water treatment plant, I observed areas of soil that had been discolored yellow east and southeast of the chlorine drums and on the west side of the chlorine tank storage area. The areas are potentially contaminated with sodium dichromate spilled during the looting activities which occurred at the water treatment plant.
Due to the potential toxicity of sodium dichromate I suggest that the areas of soil stained yellow be cordoned off and that samples be collected and tested to determine the concentration of hexavalent chromium and total chromium in these areas. If it is determined that the yellow soils are contaminated with sodium dichromate, I recommend that these soils be excavated and placed in drums; the drums being labeled and stored in a secure area. The excavation should proceed at least one foot in all directions past the yellow staining.
And from the filing from the Oregon lawyer it seems that KBR prepared its project managers for their depositions a little too well:
In Doha, Qatar, plaintiffs took the depositions of KBR managers involved in overseeing KBR's Qarmat Ali project. All reside in Houston, Texas but were produced for deposition by KBR in Doha, Qatar in September. KBR's work at Qarmat Ali commenced no later than April 2003, and the managerial witnesses admitted to varying degrees with the project from the outset. Each of the KBR managers deposed (James Gregory Badgett, Charles Edward Johnson, and William Van Ostrand) admitted to relying on a "summary" or "timeline" provided by KBR's counsel to prepare for their testimony under oath. Each gave nearly identical testimony when questioned by KBR's counsel.
On cross-examination, the witnesses also testified to a nearly identical memory "black hole" for assessments, findings, and information about what KBR confirmed at its Qarmat Ali project in March, April, and May of 2003. Despite the specific reliance on the "summary" or "timeline", counsel refused to produce the specific document relied upon and instructed each witness not to answer questions regarding the content of the document.