The dispute between the Department of Justice and Honeywell International Inc., which the DOJ says sold defective body armor to the government, seems to have degenerated into a courtroom food fight, with Honeywell accusing the DOJ of conduct that is “staggering” in its arrogance and bad faith.
The accusations against the DOJ were leveled in a brief recently filed by Honeywell in U.S. District Court for the District of Columbia, as Robert Hilson writes on the website of the Association of Certified E-Discovery Specialists. Basically, Honeywell denies the defective-armor claims and says the DOJ’s own foot-dragging in the discovery process has hobbled the company in mounting its defense.
In its recent filing, Honeywell lawyers portray the company as a victim of the government’s repeated unwillingness — or inability — to provide the documents it needs to rebut the allegations by demonstrating that Honeywell recognized problems with the armor, and repeatedly offered to help fix them.
So serious is the DOJ’s misconduct that it should be subject to severe sanctions, according to the brief signed by partner Craig S. Primis of Kirkland & Ellis LLP, representing Honeywell.
Those who have followed the lawsuit may recall that the DOJ recently blamed its outside information-management firm for delays in producing the relevant data (see Main Justice’s report), a stance that the recent brief disdains as the DOJ’s “an unseemly attempt to blame this mess” on someone else.
“[T]he Government filed this lawsuit and levied serious accusations without even instructing and ensuring that documents containing the name… (“Honeywell”) and name of the product… (“Z Shield”) be properly preserved, collected, and produced,” reads a section from the Kirkland & Ellis brief. “That the Government now asks this court to hold that such conduct is appropriate and beyond sanction is staggering…. [T]he deficiencies here are blatant…. Bad faith is not required for the relief Honeywell seeks, but even if it were, the Government’s reckless disregard for its discovery obligations clearly meets that standard.”
The government’s bad faith and bungling are part of an episode marked by “the fundamental unfairness of the government making very serious and highly public allegations against Honeywell, while ignoring the rules designed to ensure pursuit of the truth,” the brief asserts.
The dispute contains elements of comedy, at least for lawyers not caught up in it. Honeywell complains that, while the DOJ failed to turn over a lot of relevant material, it did turn over material that does not appear to be relevant, “such as documents concerning retirement parties, a lost cell phone, flu shots, and coupons for yogurt and Doritos chips.
Andrew Grosso, a former Assistant United States Attorney who is not involved in the Honeywell case, shared a perspective with the Association of Certified E-Discovery Specialists: “The government has problems that private entities don’t have. Laws about maintaining, archiving and producing records originally designed for the paper era have now been carried over to the electronic era, and I’m not sure they work.”
Grosso made government record-keeping sound like attic storage: “The government keeps everything. Just because you keep it doesn’t mean you can find it.”
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