2021 CASE UPDATES

February 4, 2021

UPSTREAM: The Judge’s Recent Discovery Ruling and Case Status

Since our last update, the case remained relatively quiet, until last week. Below is a quick summary of what had happened since:

The Upstream case was previously in the midst of a “discovery” dispute with the government – the Upstream team requested certain documents to be produced by the government, pertaining to the Buffalo Bayou & Tributaries Resiliency Study that was previously released last October. The Upstream team sought a copy of the draft of the report – which was apparently more comprehensive and contained detailed appendices that were not found in the version of the report released by the Army Corps. The government refused to produce them, claiming they are privileged. The parties presented this issue to the Court for a decision.

On January 28, 2021, Judge Lettow issued a ruling on this issue. Judge Lettow allowed partial production of the documents – for information concerning the factual materials contained within the draft of the report. Although, the Judge did not allow the discovery of “…the antecedent analysis and recommendations found in the Draft Appendix and other draft materials.”

With that – the discovery phase is now extended. The government will be producing materials in accordance with the judge’s ruling on a rolling basis in the next 30-40 days. The Upstream team anticipates additional discovery may be needed, based on what these documents reveal.

Status Conference and Trial Setting:

Thereafter, the Court scheduled a telephone conference on February 3, 2021 to discuss the status of the case. A few takeaways from the conference:

• Based on Judge Lettow’s ruling, additional discovery is likely necessary. Judge Lettow will therefore allow the extension of discovery, and the case will continue on.
• As for the trial: Judge Lettow plans to have a discussion with the chief judge in the Houston federal court (Judge Rosenthal) to address the issue of logistics and availability for trial. We have been advised that the federal courthouse is capable of accommodating a physical trial with COVID protocols in place.
• At this time, the earliest possible trial setting, as proposed, is September 28, 2021. This is not officially set yet – we will wait for instructions from the Court.
• The expected length of trial is seven (7) days.
• While the parties move forward, Judge Lettow will schedule another status conference in about a month to appraise the status. We hope to have a definitive trial setting by then.

We had hoped for an earlier trial, but, given the circumstances, we will endeavor to aim for the quickest one available.

Judge Lettow has indicated and affirmed his awareness of the importance of this case and its impact locally to the people of Harris County / Ft. Bend County. We believe he will continue to do his best to accelerate the process.

We will report back again after we hear more from Judge Lettow.

As always, please feel free to contact us with any questions or comments.