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Appendix to Plaintiffs' Response to Motion to Compel — U.S. Navy SEALs 1-3 v. Austin

Summary

An appendix in support of the plaintiffs' response to the defendants' motion to compel the plaintiffs to answer requests for admissions, filed 11/04/22 as Document 207 in U.S. Navy SEALs 1-3 v. Lloyd J. Austin, III, Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division. Its single tab, Bates numbers 0001-0072, is the defendants' updated objections and responses to the plaintiffs' first set of interrogatories to Defendant Carlos Del Toro, Secretary of the Navy. The appendix runs 75 pages and closes with interrogatory verifications signed by officials of the Defense Health Agency.

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Date
2022-11-04

Cite this document

“Appendix to Plaintiffs' Response to Motion to Compel — U.S. Navy SEALs 1-3 v. Austin.” Original at archive.org, dated 2022-11-04. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-11-04-u-s-navy-divers-1-3-plaintiffs-v-lloyd-j-austin-iii-in-his-official-capacity-as-97b81e52-1/, SHA-256 97b81e5216c3348b82e5c8471ecb99bbf0ad55d98a0aa1936d6fd6583d783eee.

Full text

Case 4:21-cv-01236-O Document 207 Filed 11/04/22                          Page 1 of 75 PageID 7149



                              UNITED STATES DISTRICT COURT
                               NORTHERN DISTRICT OF TEXAS
                                  FORT WORTH DIVISION

U.S. NAVY SEALs 1-3; on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,
                       Plaintiffs,
                                                                   Case No. 4:21-cv-01236-O
       v.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

                          Defendants.


APPENDIX IN SUPPORT OF PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION
    TO COMPEL PLAINTIFFS TO ANSWER REQUESTS FOR ADMISSIONS

Tab         Description                                                   Bates Number(s)


1           Defendants’ Updated Objections and Responses to Plaintiffs’   0001-0072
            First Set of Interrogatories to Defendant Carlos Del Toro
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22                  Page 2 of 75 PageID 7150



Respectfully submitted this 4 day of November 2022.

 /s/ Danielle A. Runyan                            HEATHER GEBELIN HACKER
 KELLY J. SHACKELFORD                                Texas Bar No. 24103325
   Texas Bar No. 18070950                          ANDREW B. STEPHENS
 JEFFREY C. MATEER                                   Texas Bar No. 24079396
   Texas Bar No. 13185320                          HACKER STEPHENS LLP
 HIRAM S. SASSER, III                              108 Wild Basin Road South, Suite 250
   Texas Bar No. 24039157                          Austin, Texas 78746
 DAVID J. HACKER                                   Tel.: (512) 399-3022
   Texas Bar No. 24103323                          heather@hackerstephens.com
 MICHAEL D. BERRY                                  andrew@hackerstephens.com
   Texas Bar No. 24085835
 JUSTIN BUTTERFIELD                                Attorneys for Plaintiffs
   Texas Bar No. 24062642
 Danielle A. Runyan *
   New Jersey Bar No. 027232004
 Holly M. Randall
   Texas Bar No. 24128002
 FIRST LIBERTY INSTITUTE
 2001 W. Plano Pkwy., Ste. 1600
 Plano, Texas 75075
 Tel: (972) 941-4444
 jmateer@firstliberty.org
 hsasser@firstliberty.org
 dhacker@firstliberty.org
 mberry@firstliberty.org
 jbutterfield@firstliberty.org
 drunyan@firstliberty.org
 hrandall@firstliberty.org

 JORDAN E. PRATT
   Florida Bar No. 100958* **
 FIRST LIBERTY INSTITUTE
 227 Pennsylvania Ave., SE
 Washington, DC 20003
 Tel: (972) 941-4444
 jpratt@firstliberty.org

 *Admitted pro hac vice.
 ** Not yet admitted to the D.C. Bar, but
 admitted to practice law in Florida. Practicing
 law in D.C. pursuant to D.C. Court of
 Appeals Rule 49(c)(8) under the supervision
 of an attorney admitted to the D.C. Bar.
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22              Page 3 of 75 PageID 7151



                               CERTIFICATE OF SERVICE

       I hereby certify that on November 4, 2022, I electronically filed the foregoing document

through the Court’s ECF system and will serve a copy on each of the Defendants according to the

Federal Rules of Civil Procedure.



                                                /s/ Danielle A. Runyan
                                                DANIELLE A. RUNYAN
Case 4:21-cv-01236-O Document 207 Filed 11/04/22   Page 4 of 75 PageID 7152




                              Tab 1




                                     Pls.' Resp. to Defs. Mot to Compel App. 0001
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22                   Page 5 of 75 PageID 7153



                      IN THE UNITED STATES DISTRICT COURT
                      FOR THE NORTHERN DISTRICT OF TEXAS

U.S. NAVY SEALs 1–3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4–26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1–5; and U.S. NAVY DIVERS                           Case No. 4:21-cv-01236-O
1–3,
                            Plaintiffs,

       v.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

                              Defendants.

  DEFENDANTS’ UPDATED OBJECTIONS AND RESPONSES TO PLAINTIFFS’
   FIRST SET OF INTERROGATORIES TO DEFENDANT CARLOS DEL TORO

       Pursuant to Rules 26 and 33 of the Federal Rule of Civil Procedure, Defendant

Carlos Del Toro, by and through undersigned counsel, submits this updated response

to Plaintiffs’ first set of interrogatories, served June 2, 2022.




                                                1

                                                    Pls.' Resp. to Defs. Mot to Compel App. 0002
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22               Page 6 of 75 PageID 7154



Del Toro Interrogatory No. 1:


       Identify each Navy servicemember (by unique ID or pseudonym) who has tested

positive for COVID-19. Provide your answer in column A of the spreadsheet attached

hereto as Exhibit B.


Response to Del Toro Interrogatory No. 1:


       Response: Defendant will provide a spreadsheet that identifies by pseudonym

Navy servicemembers who have tested positive for COVID-19, to the extent permissible

under the Privacy Act and the Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. § 1320d-6, and subject to the de-identification requirements for

Protected Health Information (PHI) under 45 C.F.R. § 164.514. The file also identifies

when each individual was identified as being infected with COVID-19, whether that

individual recovered from COVID-19, whether that individual ever required

hospitalization due to COVID-19, and if so, the dates admitted and discharged from the

hospital, and if applicable, the dates of COVID-19 vaccination and manufacturer.

Defendant produced this list on July 8, 2022.

       The information provided in response to this Interrogatory reflects information

in Defendants’ control, including reported information about hospitalizations at

military treatment facilities and reported hospitalizations at civilian hospitals, but it

may not include information regarding testing or hospitalization that occurred outside



                                              2

                                                  Pls.' Resp. to Defs. Mot to Compel App. 0003
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22              Page 7 of 75 PageID 7155



the military’s medical system or not reported to an individual’s chain of command. The

information will also not include information about those individuals who experienced

severe symptoms that did require hospitalization, like long COVID.

       Specific Objections: Defendant objects to Interrogatory Number 1 insofar as it

purports to require providing the requested information in a particular format in

conjunction with Interrogatory Numbers 1–14. As detailed in the General Objections

below, to provide the information as requested by Interrogatory Numbers 1–14 would

conservatively take at least 201,714 man-hours to compile at a cost of at least

$8,270,147.50 in wages alone. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely

benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.

       Defendant also objects because Plaintiffs are requesting information protected

under the Privacy Act, 5 U.S.C. § 552a, and Protected Health Information (PHI) under

the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6.

Absent express written permission of the patient or a written court order from a court of


                                             3

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0004
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22             Page 8 of 75 PageID 7156



competent jurisdiction, Defendant cannot disclose information protected under the

Privacy Act and HIPAA. 32 C.F.R. § 516.41(a); 32 C.F.R. § 516.46; 45 C.F.R. § 164.512(e).

Furthermore, a protective order is required before Defendant will disclose this

information to protect its obligations under the Privacy Act and HIPAA.




Del Toro Interrogatory No. 2:


         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether such servicemember is a Navy SEAL, SWCC, DIVER, or EOD.

  Provide your answer in column B of the spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 2:


      Response: Within forces assigned to Naval Special Warfare Command (NSWC),

the following table represents the number of individuals classified as Navy SEAL,

SWCC, DIVER or EOD who have tested positive for COVID-19.




                                            4

                                                Pls.' Resp. to Defs. Mot to Compel App. 0005
 Case 4:21-cv-01236-O Document 207 Filed 11/04/22               Page 9 of 75 PageID 7157


                              Category                  Total
                              SEAL Officer              195
                              SEAL Enlisted             595
                              SEAL Total                790
                              SWCC Officer              13
                              SWCC Enlisted             239
                              SWCC Total                252
                              EOD Officer               5
                              EOD Enlisted              21
                              EOD Total                 26
                              Dive Officer              0
                              Dive Enlisted (ND)        58
                              Dive Total                58

       Specific Objections: Defendant objects to Interrogatory Number 2 insofar as it

purports to require providing the requested information in a particular format in

conjunction with Interrogatory Numbers 1–14. As detailed in the General Objections

below, to provide the information as requested by Interrogatory Numbers 1–14 would

conservatively take at least 201,714 man-hours to compile at a cost of at least

$8,270,147.50 in wages alone. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely

benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).

       The information requested by this Interrogatory does not exist in a central

location. The COVID-19 records do not include information about unit or rating.

Individual units may maintain responsive records, although they are not required to,


                                             5

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0006
Case 4:21-cv-01236-O Document 207 Filed 11/04/22             Page 10 of 75 PageID 7158



and it would be overly burdensome to search through individual records for

information responsive to this Interrogatory since is there is no standardized format or

records requirement. Further, many records reflecting the operational readiness of

Naval Special Warfare units are classified. The burden of searching through the

individual and unit records for responsive information (even to see if such information

exists at all) outweighs any probative value to the claims in this case. Defendant

estimates that it would take approximately five days for an O-4 action officer at Chief of

Naval Operations, Plans and Strategy (OPNAV N3N5) to contact each Naval Special

Warfare unit, 2 days for each of an estimated 24 units for O-4 administrative officer to

search unit records, screen records for release, and transmit to OPNAV in a standard

format. And even after expending nearly 400 man-hours, the collected information may

still not be complete or accurate since this information is not required to be maintained,

and in any event would not include SEALs, SWCCs, EODs, and Divers not assigned

with NSWC. The cost of conducting the search and the production of the

individualized information in the format requested in Interrogatory Number 2 would

cost approximately $21,173.50.

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19, including whether they fall into any of the

identified categories.


                                            6

                                                Pls.' Resp. to Defs. Mot to Compel App. 0007
Case 4:21-cv-01236-O Document 207 Filed 11/04/22             Page 11 of 75 PageID 7159



      Defendant further objects because Plaintiffs are requesting information protected

under the Privacy Act, 5 U.S.C. § 552a, and Protected Health Information (PHI) under

the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6.

Absent express written permission of the patient or a written court order from a court of

competent jurisdiction, Defendant cannot disclose information protected under the

Privacy Act and HIPAA. 32 C.F.R. § 516.41(a); 32 C.F.R. § 516.46; 45 C.F.R. § 164.512(e).




Del Toro Interrogatory No. 3:


         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify the date the servicemember tested positive for COVID-19. Provide your

  answer in column C of the spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 3:


      Response: Defendant will provide a spreadsheet that identifies by pseudonym

Navy servicemembers who have tested positive for COVID-19, to the extent permissible

under the Privacy Act and the Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. § 1320d-6, and subject to the de-identification requirements for

Protected Health Information (PHI) under 45 C.F.R. § 164.514. The file also identifies

when each individual was identified as being infected with COVID-19, whether that

individual recovered from COVID-19, whether that individual ever required



                                            7

                                                Pls.' Resp. to Defs. Mot to Compel App. 0008
Case 4:21-cv-01236-O Document 207 Filed 11/04/22               Page 12 of 75 PageID 7160



hospitalization due to COVID-19, and if so, the dates admitted and discharged from the

hospital, and if applicable, the dates of COVID-19 vaccination and manufacturer.

Defendant produced this list on July 8, 2022.

       The information provided in response to this Interrogatory reflects information

in Defendants’ control, including reported information about hospitalizations at

military treatment facilities and reported hospitalizations at civilian hospitals, but it

may not include information regarding testing or hospitalization that occurred outside

the military’s medical system or not reported to an individual’s chain of command. The

information will also not include information about those individuals who experienced

severe symptoms that did require hospitalization, like long COVID.

       Specific Objections: Defendant objects to Interrogatory Number 3 insofar as it

purports to require providing the requested information in a particular format in

conjunction with Interrogatory Numbers 1–14. As detailed in the General Objections

below, to provide the information as requested by Interrogatory Numbers 1–14 would

conservatively take at least 201,714 man-hours to compile at a cost of at least

$8,270,147.50 in wages alone. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely

benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).


                                              8

                                                  Pls.' Resp. to Defs. Mot to Compel App. 0009
Case 4:21-cv-01236-O Document 207 Filed 11/04/22             Page 13 of 75 PageID 7161



      Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.

      Defendant also objects because Plaintiffs are requesting information protected

under the Privacy Act, 5 U.S.C. § 552a, and Protected Health Information (PHI) under

the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6.

Absent express written permission of the patient or a written court order from a court of

competent jurisdiction, Defendant cannot disclose information protected under the

Privacy Act and HIPAA. 32 C.F.R. § 516.41(a); 32 C.F.R. § 516.46; 45 C.F.R. § 164.512(e).

Furthermore, a protective order is required before Defendant will disclose this

information to protect its obligations under the Privacy Act and HIPAA.




Del Toro Interrogatory No. 4:


         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify the dates the servicemember received doses of a COVID-19 vaccination,

  including any booster doses, and including the manufacturer of each dose. Provide

  your answer in columns D, E, F, G, H, and I of the spreadsheet attached hereto as

  Exhibit B.




                                            9

                                                Pls.' Resp. to Defs. Mot to Compel App. 0010
Case 4:21-cv-01236-O Document 207 Filed 11/04/22              Page 14 of 75 PageID 7162



Response to Del Toro Interrogatory No. 4:


       Response: Defendant will provide a spreadsheet that identifies by pseudonym

Navy servicemembers who have tested positive for COVID-19, to the extent permissible

under the Privacy Act and the Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. § 1320d-6, and subject to the de-identification requirements for

Protected Health Information (PHI) under 45 C.F.R. § 164.514. The file also identifies

when each individual was identified as being infected with COVID-19, whether that

individual recovered from COVID-19, whether that individual ever required

hospitalization due to COVID-19, and if so, the dates admitted and discharged from the

hospital, and if applicable, the dates of COVID-19 vaccination and manufacturer.

Defendant produced this list on July 8, 2022.

       The information provided in response to this Interrogatory reflects information

in Defendants’ control, including reported information about hospitalizations at

military treatment facilities and reported hospitalizations at civilian hospitals, but it

may not include information regarding testing or hospitalization that occurred outside

the military’s medical system or not reported to an individual’s chain of command. The

information will also not include information about those individuals who experienced

severe symptoms that did require hospitalization, like long COVID.

       Specific Objections: Defendant objects to Interrogatory Number 4 insofar as it

purports to require providing the requested information in a particular format in

                                             10

                                                Pls.' Resp. to Defs. Mot to Compel App. 0011
Case 4:21-cv-01236-O Document 207 Filed 11/04/22            Page 15 of 75 PageID 7163



conjunction with Interrogatory Numbers 1–14. As detailed in the General Objections

below, to provide the information as requested by Interrogatory Numbers 1–14 would

conservatively take at least 201,714 man-hours to compile at a cost of at least

$8,270,147.50 in wages alone. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely

benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.

       Defendant also objects because Plaintiffs are requesting information protected

under the Privacy Act, 5 U.S.C. § 552a, and Protected Health Information (PHI) under

the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6.

Absent express written permission of the patient or a written court order from a court of

competent jurisdiction, Defendant cannot disclose information protected under the

Privacy Act and HIPAA. 32 C.F.R. § 516.41(a); 32 C.F.R. § 516.46; 45 C.F.R. § 164.512(e).

Furthermore, a protective order is required before Defendant will disclose this

information to protect its obligations under the Privacy Act and HIPAA.




                                            11

                                              Pls.' Resp. to Defs. Mot to Compel App. 0012
Case 4:21-cv-01236-O Document 207 Filed 11/04/22           Page 16 of 75 PageID 7164



Del Toro Interrogatory No. 5:


         On page 24 of your Application, you state that “unvaccinated or partially

  vaccinated service members are at higher risk to contract COVID-19, and to develop

  severe symptoms requiring hospitalizations that remove them from their units and

  impact mission execution.”

         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember developed severe symptoms from COVID-

  19 that required hospitalization, including the date of the hospitalization. Provide

  your answer in columns J and K of the spreadsheet attached hereto as Exhibit B


Response to Del Toro Interrogatory No. 5:


      Response: Defendant will provide a spreadsheet that identifies by pseudonym

Navy servicemembers who have tested positive for COVID-19, to the extent permissible

under the Privacy Act and the Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. § 1320d-6, and subject to the de-identification requirements for

Protected Health Information (PHI) under 45 C.F.R. § 164.514. The file also identifies

when each individual was identified as being infected with COVID-19, whether that

individual recovered from COVID-19, whether that individual ever required

hospitalization due to COVID-19, and if so, the dates admitted and discharged from the




                                           12

                                             Pls.' Resp. to Defs. Mot to Compel App. 0013
Case 4:21-cv-01236-O Document 207 Filed 11/04/22              Page 17 of 75 PageID 7165



hospital, and dates of COVID-19 vaccination (if applicable). Defendant produced this

list on July 8, 2022.

       For purposes of responding to Interrogatory Number 5, Defendant defines

“hospitalization” as in-patient care where admittance to a hospital was required for

treatment.

       The information provided in response to this Interrogatory reflects information

in Defendants’ control, including reported information about hospitalizations at

military treatment facilities and reported hospitalizations at civilian hospitals, but it

may not include information regarding testing or hospitalization that occurred outside

the military’s medical system or not reported to an individual’s chain of command. The

information will also not include information about those individuals who experienced

severe symptoms that did require hospitalization, like long COVID.

       Specific Objections: Defendant objects to Interrogatory Number 5 insofar as it

purports to require providing the requested information in a particular format in

conjunction with Interrogatory Numbers 1–14. As detailed in the General Objections

below, to provide the information as requested by Interrogatory Numbers 1–14 would

conservatively take at least 201,714 man-hours to compile at a cost of at least

$8,270,147.50 in wages alone. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely


                                             13

                                               Pls.' Resp. to Defs. Mot to Compel App. 0014
Case 4:21-cv-01236-O Document 207 Filed 11/04/22            Page 18 of 75 PageID 7166



benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).

      Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.

      Defendant also objects because Plaintiffs are requesting information protected

under the Privacy Act, 5 U.S.C. § 552a, and Protected Health Information (PHI) under

the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6.

Absent express written permission of the patient or a written court order from a court of

competent jurisdiction, Defendant cannot disclose information protected under the

Privacy Act and HIPAA. 32 C.F.R. § 516.41(a); 32 C.F.R. § 516.46; 45 C.F.R. § 164.512(e).

Furthermore, a protective order is required before Defendant will disclose this

information to protect its obligations under the Privacy Act and HIPAA.




Del Toro Interrogatory No. 6:


         On page 24 of your Application, you state that “unvaccinated or partially

  vaccinated service members are at higher risk to contract COVID-19, and to develop

  severe symptoms requiring hospitalizations that remove them from their units and

  impact mission execution.”

         For each Navy servicemember listed in your response to Interrogatory No. 1,

                                            14

                                              Pls.' Resp. to Defs. Mot to Compel App. 0015
Case 4:21-cv-01236-O Document 207 Filed 11/04/22            Page 19 of 75 PageID 7167



  identify whether the servicemember developed severe symptoms from COVID-19

  that required removing the servicemember from his/her unit and impacted mission

  execution, including the dates the servicemember was removed from his/her unit, the

  dates of the impacted mission, and the geographic location of the impacted mission.

  Provide your answer in columns L, M, and N of the spreadsheet attached hereto as

  Exhibit B.


Response to Del Toro Interrogatory No. 6:


      Response: Defendant notes that Interrogatory Number 6 appears to suggest that

only servicemembers who develop severe symptoms from COVID-19 are removed from

his/her unit. That is not an accurate description of COVID-19 impacts. For example, all

NSW members diagnosed with COVID-19 are immediately placed into a restriction-of-

movement (ROM) status, which requires that the member be isolated or quarantined

under applicable procedures established by the Center for Disease Control (CDC),

Department of Defense (DoD), U.S. Special Operations Command (USSOCOM), U.S.

Navy, and Naval Special Warfare Command (NSWC). Similar policies apply to all

servicemembers in the Navy. While in ROM status, servicemembers cannot participate

in in-person activities, including training and mission planning sessions. Although

some activities can be accomplished remotely, the vast majority require that the

member attend in-person. Duties that involve accessing classified systems or materials

also require in-person access. Defendant refers Plaintiffs to the responses to

                                            15

                                              Pls.' Resp. to Defs. Mot to Compel App. 0016
Case 4:21-cv-01236-O Document 207 Filed 11/04/22             Page 20 of 75 PageID 7168



Interrogatories 1 and 2 for specific information about how many individuals have tested

positive for COVID-19 across the Navy and in specific categories that Plaintiffs

requested.

       Defendant also refers Plaintiffs to the list to be provided in response to

Interrogatory Number 5, which identifies by pseudonym the 598 servicemembers

whose symptoms were so severe as to require hospitalization.

       Defendant also refers Plaintiffs to the list to be provided in response to

Interrogatory Number 5, which identifies by pseudonym the 17 servicemembers who

did not recover from a COVID-19 infection, and, since they are deceased, are no longer

a part of their unit.

       For examples of missions that were impacted by COVID-19, Defendant refers to

and incorporates the response to Interrogatory Number 8, which describes just some of

the NSW missions that were impacted by COVID-19.

       Specific Objections: Defendant objects to the request to identify, for each of the

more than 97,000 individual servicemembers who were diagnosed with COVID-19, the

specific mission that was impacted by their quarantine, hospitalization, or death. Such

information is not centrally tracked and, as explained in Defendant’s general objections,

would require significant effort to compile at the local level, and thus is not

proportionate to the needs of this case. Searching for such records would also be

difficult because of the vagueness of the phrase “impact to mission execution” and any


                                             16

                                               Pls.' Resp. to Defs. Mot to Compel App. 0017
Case 4:21-cv-01236-O Document 207 Filed 11/04/22              Page 21 of 75 PageID 7169



search may not capture the full impact of COVID-19. Because of the extended nature of

COVID-19 quarantine, some missions were never planned or scheduled based on

unavailability of personnel, which would not be reflected in local records.

       Defendant objects to the request for geographic location of impacted missions

because that information does not appear to be relevant to any claim in this case.

Information about the location of missions may be difficult to describe since many take

place over large and many geographic areas. Furthermore, Defendants object to

providing geographic locations of classified missions (particularly NSW missions).

       Defendant objects to Interrogatory Number 6 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide

the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).




                                                17

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0018
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       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 7:


          On page 24 of your Application, you state that “[a] SEAL who falls ill not only

  cannot complete his or her own mission, but risks infecting others as well,

  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The

  Navy has a compelling interest in avoiding those foreseeable risks, especially given

  the transmissibility and virulence of COVID-19.”

          For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember could not complete his or her mission because

  he or she was ill from COVID-19, including the date and geographic location of the

  mission the servicemember could not complete. Provide your answer in columns O,

  P, and Q of the spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 7:


       Defendant incorporates the response and objections from Interrogatory Number

6 into this response.



                                            18

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Del Toro Interrogatory No. 8:


         On page 24 of your Application, you state that “[a] SEAL who falls ill not only

  cannot complete his or her own mission, but risks infecting others as well,

  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The Navy

  has a compelling interest in avoiding those foreseeable risks, especially given the

  transmissibility and virulence of COVID-19.” On page 29 of your Application, you

  state that “if any [member of a Naval Special Warfare team] were to contract COVID-

  19, it would necessarily have an adverse impact to the mission and to his fellow team

  members.” On page 31 of your Application, you state that “[e]ven one SEAL who falls

  ill – as an unvaccinated individual is far more likely to do – can jeopardize an entire

  mission.”

         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember could not complete his/her Naval Special

  Warfare mission because he/she was ill from COVID-19, including the date and

  geographic location of the Naval Special Warfare mission that could not be

  completed. Provide your answer in columns R, S, and T of the spreadsheet attached

  hereto as Exhibit B.




                                           19

                                             Pls.' Resp. to Defs. Mot to Compel App. 0020
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Response to Del Toro Interrogatory No. 8:


       Response: Definition of Mission. Naval Special Warfare (NSW) forces are multi-

purpose combat forces, organized and trained to conduct a variety of special operations

missions in all environments. For purposes of responding to interrogatory number

eight, Defendant defines an “NSW mission” as follows. NWS missions may be either

“operational” or “non-operational.” Operational NSW missions consist of assignments,

other than those to man, train and equip members, executed pursuant to specific orders

to achieve a discrete NSW function. NSW functions include activities designed to

secure the United States from attack; access and retain global freedom of action;

strengthen existing and emerging alliances and partnerships; establish favorable

security conditions; deter aggression and violence by state, non-state, and individual

actors; and prosecute the full range of military operations in support of U.S. interests.

Non-operational missions consist of the daily activities associated with manning,

training, equipping, and sustaining NSW personnel to ensure health, readiness, and the

successful execution of operational missions as defined in the preceding sentence.

       Removal from Unit. All NSW members diagnosed with COVID-19 are

immediately placed into a restriction-of-movement (ROM) status, which requires that

the member be isolated or quarantined under applicable procedures established by the

Center for Disease Control (CDC), Department of Defense (DoD), U.S. Special

Operations Command (USSOCOM), U.S. Navy, and Naval Special Warfare Command

                                            20

                                              Pls.' Resp. to Defs. Mot to Compel App. 0021
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(NSWC). While in ROM status, NSW members cannot participate in in-person

activities, including training and mission planning sessions. Although some activities

can be accomplished remotely, the vast majority require that the member attend in-

person. Duties that involve accessing classified systems or materials also require in-

person access.

       Mission Impacts. Defendant is aware of the following COVID-related impacts on

individual NSW members’ mission accomplishment:

       In March 2020, SEAL Team ONE (ST-1) was deploying out of Naval Air Station

North Island to relieve SEAL Team Three (ST-3) and after the transportation plane had

taken off, the command learned that a team member was COVID-19 positive and had

been in close contact with numerous members on the flight. As a result of the close

contact, the entire flight was turned around. Afterwards, multiple close contacts tested

positive and larger contract tracing pools of close contacts were identified, creating

required isolation and quarantine periods for numerous ST-1 personnel. This caused

the entire relief of SEAL Team THREE (ST-3) (in multiple locations across the U.S.

Central Command and U.S. Indo-Pacific Command areas of responsibility) to be

delayed. This delay prevented relief of ST-3 for weeks and in some cases up to three

months (due to other circumstances affecting the ability of ST-1 personnel to relieve ST-

3 personnel once target rotation dates were missed).




                                            21

                                              Pls.' Resp. to Defs. Mot to Compel App. 0022
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      From January to March 2021, NSW members at Task Force THREE, deployed to

Naval Support Activity Bahrain, contracted COVID-19, which adversely impacted

individual members’ abilities to participate in mission preparedness and execution.

Specifically, certain NSW members of Task Force THREE, Special Boat Team (SBT)-20,

SEAL Team (ST)-5, and the USS Philippine Sea (CG 58) and USS San Diego (LPD 22),

assigned to a U.S. Special Operations Command Central (SOCCENT) – U.S. Naval

Forces Central Command (NAVCENT) mission had contracted COVID-19 and were

required to isolate. As a result, those NSW members in isolation were unable to timely

prepare for or execute their assigned SOCCENT – NAVCENT missions.

      Training events (called training “evolutions”) within Naval Special Warfare

Group FOUR (NSWG-4) needed to be rescheduled due to members having close contact

with other members who had been diagnosed with COVID-19. NSWC does not have

data establishing the number of members within the affected groups that had tested

positive for COVID-19 versus those who had only been in close contact with infected

members. The rescheduled training evolutions include:

          •   Special Boat Team (SBT)-20
              Time Frame: May 2020
              Number of Members Affected: 13
              Geographic Location: In and around JEB Little Creek, Virginia Beach, VA

          •   Special Boat Team (SBT)-20
              Time Frame: April 2021
              Number of Members Affected: 11
              Geographic Location: In and around JEB Little Creek, Virginia Beach, VA


                                          22

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          •   Special Boat Team (SBT)-20
              Time Frame: July 2021
              Number of Members Affected: 12
              Geographic Location: In and around JEB Little Creek, Virginia Beach, VA

          •   Special Boat Team (SBT)-22
              Time Frame: 1-11 Aug 2021
              Number of Members Affected: 32
              Geographic Location: In or around John C. Stennis Space Center, Stennis,
              MS.

      Rescheduling training for SBT-22 due to COVID 19 was compounded by

Hurricane IDA hitting during heavy weapons training at Fort Knox. These two

situations resulted in a combined 28-day delay in mission execution.

      NSW members assigned to Naval Special Warfare Group EIGHT (NSWG-8),

who were scheduled to participate in a special operations exercise aboard a U.S. Navy

combatant ship in the Pacific area of responsibility in early 2021, were unable to conduct

that exercise due to an outbreak of COVID-19 aboard the ship.

      On at least one occasion a member of Naval Special Warfare Development Group

(NSWDG) was unable to deploy on-time for an assignment outside the United States

due to being placed into ROM status following a positive COVID-19 test.

      On several occasions SEAL, SWCC, and EOD personnel belong to NSWDG were

unable to participate in training and planning session due to testing positive for

COVID-19.

      Specific Objections: Defendant objects to the request for geographic location of

impacted missions because that information does not appear to be relevant to any claim
                                            23

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in this case. Information about the location of missions may be difficult to describe

since many take place over large and many geographic areas. Furthermore, Defendants

object to providing geographic locations of classified missions (particularly NSW

missions).

      Defendants object to Interrogatory Number 8 as unduly burdensome and not

proportionate to the needs of the case. NSWC does not centrally track which specific

NSW members have been unable to complete operational missions due to being ill from

COVID-19 or as the result of the restrictions associated with placement into a ROM

status. NSWC also does not centrally track which specific NSW members who have

been diagnosed with COVID-19 have been unable to fully participate in non-

operational NSW activities due to being ill with COVID-19, or as the result of the

restrictions associated with placement into a ROM status. Asking NSW units to

retroactively create records for each individual would be unduly burdensome and

likely ineffective. The total cost and time required to do so because the total number of

cases in units supporting NSW missions has not been calculated and would not be

limited to just NSWC units. Further the assignment of personnel to support specific

NSW missions is generally classified.

      Defendant objects to Interrogatory Number 8 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide


                                            24

                                              Pls.' Resp. to Defs. Mot to Compel App. 0025
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the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 9:


          On page 24 of your Application, you state that “[a] SEAL who falls ill not only

  cannot complete his or her own mission, but risks infecting others as well,

  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The

  Navy has a compelling interest in avoiding those foreseeable risks, especially given

  the transmissibility and virulence of COVID-19.” On page 29 of your Application,

  you state that “if any [member of a Naval Special Warfare team] were to contract

  COVID-19, it would necessarily have an adverse impact to the mission and to his

                                                25

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0026
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  fellow team members.” On page 31 of your Application, you state that “[e]ven one

  SEAL who falls ill – as an unvaccinated individual is far more likely to do – can

  jeopardize an entire mission.”

          For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether an entire mission could not be completed and/or did not succeed

  because the Navy servicemember listed in your response to Interrogatory No. 1 was

  ill with COVID-19, including the dates and geographic location of the mission that

  could not be completed and/or did not succeed. Provide your answer in columns U,

  V, and W of the spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 9:


       Defendant incorporates the response and objections from Interrogatory Number

6 into this response.




Del Toro Interrogatory No. 10:


          On page 24 of your Application, you state that “many ships are staffed with

  limited medical personnel, meaning that crewmembers who develop severe

  symptoms would require a return to port or an emergency medical evacuation by

  helicopter, which is not always viable.”

          For each Navy Servicemember listed in your response to Interrogatory No. 1,



                                             26

                                              Pls.' Resp. to Defs. Mot to Compel App. 0027
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  identify whether the servicemember was deployed on a ship and developed severe

  symptoms that required the ship to return to port, including the dates the

  servicemember was deployed on the ship and the date the ship was required to return

  to port. Provide your answer in columns X, Y, Z, and AA of the spreadsheet attached

  hereto as Exhibit B.


Response to Del Toro Interrogatory No. 10:


      Response: Defendant provides the following examples in response to this

Interrogatory:

          •   In March 2020, the USS Theodore Roosevelt was delayed from ongoing

              operations in Commander of the 7th Fleet’s Area of Responsibility (“C7F

              AOR”). The C7F AOR encompasses more than 48 million square miles

              (more than 124 million square kilometers) from the Kuril Islands in the

              north to the Antarctic in the south, and from the International Date Line to

              the 68th meridian east, which runs down from the India-Pakistan

              border. The USS Theodore Roosevelt was on port call in Vietnam from

              March 5–9, 2020, and the first Sailor tested positive for COVID-19 on

              March 22, 2020. By March 21, 2020, 100 Sailors had tested positive, and on

              April 1, 2020, the Navy ordered the ship to evacuate the crew and begin

              offshore quarantine in Guam. By April 8, 2020, 416 Sailors had tested

              positive, and by April 16, 655 had tested positive. In total, 1,271 Sailors

                                             27

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            (27% of the crew) tested positive, which resulted in 26 hospitalizations,

            and 1 death. Further information is available in the subsequent Command

            Investigation, which is available here: https://perma.cc/3423-JAGB.

        •   On April 24, 2020, 18 Sailors tested positive for COVID-19 aboard the USS

            Kidd, which required the ship to cease operations and to return to port.

            The ship was operating in the 4th Fleet AOR, which encompasses the

            waters of the Caribbean, Central America, and South America. At least

            119 Sailors ultimately tested positive, which required 2 Sailors to be

            MEDEVAC’d to the United States and 15 Sailors to be transferred to USS

            Makin Island for monitoring. USS Kidd resumed operations on June 10,

            2020.

        •   USS San Diego experienced a COVID-19 outbreak in late February 2021,

            and was quarantined for two weeks in port Manama. The entire ship was

            tested, and positives and close contacts were quarantined. The ship

            returned to sea on March 12 2021.

        •   USS Philippine Sea experienced a COVID-19 outbreak in late February

            2021, and was quarantined for four weeks in port Bahrain. The entire ship

            was tested, and positives and close contacts were quarantined.

        •   USS Wyoming experienced a COVID-19 outbreak in August 2021; a total

            of 30 cases were debarked on 12 August. The cases were discovered in


                                          28

                                            Pls.' Resp. to Defs. Mot to Compel App. 0029
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              three rounds of testing; 13 unvaccinated Sailors initially, 14 vaccinated

              sailors tested positive when testing of vaccinated sailors were directed,

              and 3 more unvaccinated Sailors who had initially tested negative were

              positive in a retest three days after the first round of testing.

          •   On October 27, 2021, USS Columbia made a routine stop at port and

              disembarked a 25-year-old, vaccinated Sailor who had tested positive for

              COVID-19. USS Columbia was able to continue mission.

          •   The USS Milwaukee experienced an outbreak of COVID-19 in January

              2022. The crew was 100% vaccinated and all individuals who tested

              positive were either asymptomatic or experienced only minor symptoms.

              None were hospitalized. The ship was quarantined for 15 days at Naval

              Station Guantanamo Bay, Cuba, which resulted in one cancelled training

              evolution.

      Specific Objections: Defendant objects that the burden of providing this

information for each of the 97,000 servicemembers who have tested positive for COVID-

19 outweighs its likely benefit. Operational impacts, including underway locations and

dates of mission impact are reported via classified channels. Units are not required to

report specifically which sailor or sailors impacted their operations. To generate the

information requested by this Interrogatory would require reviewing all afloat units’

local records and then prepare those records for unclassified release. Further, since


                                             29

                                               Pls.' Resp. to Defs. Mot to Compel App. 0030
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these records are not required to be kept, the final data set may still be incomplete or

otherwise inaccurate.

       A local records search identifies 40 classified events of relevance to this

Interrogatory, each of which has as at least two associated derivatively classified

messages. To locate a record copy and declassify a single message from an afloat unit

reporting underway COVID-19 cases by classified channels, the defendant estimates it

would require at approximately 31.5 work-hours per message. A comprehensive

redaction or declassification of all associated messages for these 40 events would take

approximately 2500 work-hours or 315 work-days. Expanding the search to all 400+ sea-

going units to identify additional mission critical impacts would add approximately 3

hours per unit search due to crew turnover through the COVID-19 pandemic, adding

approximately 1200 work-hours in sea-going unit time, plus approximately 15 minutes

per unit to process any non-zero answer, followed by an additional 31.5 hours for

declassification as necessary. Therefore, a minimal comprehensive answer is expected to

take at least 3,700 work-hours or 462.5 work-days. Further, this process would require

personnel that fleet commands do not have available to dedicate to the task, and

reviews are unlikely to result in the release of any information about the actual

operational impact.

       Defendant objects to Interrogatory Number 10 insofar as it purports to require

providing the requested information in a particular format in conjunction with


                                             30

                                               Pls.' Resp. to Defs. Mot to Compel App. 0031
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Interrogatory Numbers 1–14. Defendant thus objects to the interrelated Interrogatory

Numbers 1–14 as unduly burdensome and disproportionate to the needs of this case

because the “burden” and “expense of the proposed discovery outweighs its likely

benefit” considering the “needs of the case,” the “amount in controversy,” and “the

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b).

      Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 11:


         On page 24 of your Application, you state that “many ships are staffed with

  limited medical personnel, meaning that crewmembers who develop severe

  symptoms would require a return to port or an emergency medical evacuation by

  helicopter, which is not always viable.”

         For each Navy Servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember was deployed on a ship and developed severe

  symptoms that required emergency evacuation by helicopter, including in your

  answer the date of the evacuation by helicopter. Provide your answer in columns AB

  and AC of the spreadsheet attached hereto as Exhibit B.




                                             31

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Response to Del Toro Interrogatory No. 11:


       Response: Defendant provides the following example in response to this

Interrogatory:

          •      On April 24, 2020, 18 Sailors tested positive for COVID-19 aboard the USS

              Kidd, which required the ship to cease operations and to return to port.

              The ship was operating in the 4th Fleet AOR, which encompasses the

              waters of the Caribbean, Central America, and South America. At least

              119 Sailors ultimately tested positive, which required 2 Sailors to be

              MEDEVAC’d to the United States and 15 Sailors to be transferred to USS

              Makin Island for monitoring. USS Kidd resumed operations on June 10,

              2020.

       Specific Objections: Defendant objects that the burden of providing this

information for each of the 97,000 servicemembers who have tested positive for COVID-

19 outweighs its likely benefit. Operational impacts, including underway locations and

dates of mission impact are reported via classified channels. Units are not required to

report specifically which sailor or sailors impacted their operations. To generate the

information requested by this Interrogatory would require reviewing all afloat units’

local records and then prepare those records for unclassified release. Further, since

these records are not required to be kept, the final data set may still be incomplete or

otherwise inaccurate.

                                             32

                                               Pls.' Resp. to Defs. Mot to Compel App. 0033
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       To locate a record copy and declassify a single message from an afloat unit

reporting underway COVID-19 cases by classified channels, the defendant estimates it

would require at approximately 31.5 man-hours, and a cost of $1805.28. Further, this

process would require personnel that fleet commands do not have available to dedicate

to the task, and reviews are unlikely to result in the release of any information about the

actual operational impact.

       Defendant objects to Interrogatory Number 11 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide

the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




                                                33

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0034
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Del Toro Interrogatory No. 12:


         On page 24 of your Application, you state that “[a] SEAL who falls ill not only

  cannot complete his or her own mission, but risks infecting others as well,

  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The

  Navy has a compelling interest in avoiding those foreseeable risks, especially given

  the transmissibility and virulence of COVID-19.”

         For each Navy Servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember was deployed on a submarine on the date the

  servicemember tested positive for COVID-19, including in your answer the dates the

  servicemember was deployed on the submarine. Provide your answer in columns

  AD and AE of the spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 12:


      Response: Defendant provides the following examples in response to this

Interrogatory:

          •   USS Wyoming, an Ohio-class ballistic submarine, experienced a COVID-

              19 outbreak in August 2021; a total of 30 cases were debarked on 12

              August. The cases were discovered in three rounds of testing; 13

              unvaccinated Sailors initially, 14 vaccinated sailors tested positive when



                                            34

                                              Pls.' Resp. to Defs. Mot to Compel App. 0035
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              testing of vaccinated sailors were directed, and 3 more unvaccinated

              Sailors who had initially tested negative were positive in a retest three

              days after the first round of testing.

          •   On October 27, 2021, USS Columbia, a Los-Angeles class attack

              submarine, made a routine stop at port and disembarked a 25-year-old,

              vaccinated Sailor who had tested positive for COVID-19. USS Columbia

              was able to continue mission.




       Specific Objections: Defendant objects that the burden of providing this

information for each of the 97,000 servicemembers who have tested positive for COVID-

19 outweighs its likely benefit. Operational impacts, including underway locations and

dates of mission impact are reported via classified channels. Units are not required to

report specifically which sailor or sailors impacted their operations. To generate the

information requested by this Interrogatory would require reviewing all afloat units’

local records and then prepare those records for unclassified release. Further, since

these records are not required to be kept, the final data set may still be incomplete or

otherwise inaccurate.

       To locate a record copy and declassify a single message from an afloat unit

reporting underway COVID-19 cases by classified channels, the defendant estimates it

would require at approximately 31.5 man-hours, and a cost of $1805.28. Further, this


                                              35

                                               Pls.' Resp. to Defs. Mot to Compel App. 0036
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process would require personnel that fleet commands do not have available to dedicate

to the task, and reviews are unlikely to result in the release of any information about the

actual operational impact.

       Defendant objects to Interrogatory Number 12 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide

the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 13:


          On page 24 of your Application, you state that “[a] SEAL who falls ill not only

  cannot complete his or her own mission, but risks infecting others as well,

                                                36

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  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The

  Navy has a compelling interest in avoiding those foreseeable risks, especially given

  the transmissibility and virulence of COVID-19.”.

         For each Navy Servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember developed a severe illness from COVID-19 that

  required evacuation and evacuation was impractical and/or impossible, including

  the date when the servicemember required evacuation and the date (if any) the

  servicemember was evacuated. Provide your answer in columns AF and AG of the

  spreadsheet attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 13:


      Response: Defendant provides the following examples in response to this

Interrogatory:

          •   On April 24, 2020, 18 Sailors tested positive for COVID-19 aboard the USS

              Kidd, which required the ship to cease operations and to return to port.

              The ship was operating in the 4th Fleet AOR, which encompasses the

              waters of the Caribbean, Central America, and South America. At least

              119 Sailors ultimately tested positive, which required 2 Sailors to be

              MEDEVAC’d to the United States and 15 Sailors to be transferred to USS




                                              37

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              Makin Island for monitoring. USS Kidd resumed operations on June 10,

              2020.

          •   USS Wyoming experienced a COVID-19 outbreak in August 2021; a total

              of 30 cases were debarked on 12 August. The cases were discovered in

              three rounds of testing; 13 unvaccinated Sailors initially, 14 vaccinated

              sailors tested positive when testing of vaccinated sailors were directed,

              and 3 more unvaccinated Sailors who had initially tested negative were

              positive in a retest three days after the first round of testing.




       Specific Objections: Defendant objects that the burden of providing this

information for each of the 97,000 servicemembers who have tested positive for COVID-

19 outweighs its likely benefit. Operational impacts, including underway locations and

dates of mission impact are reported via classified channels. Units are not required to

report specifically which sailor or sailors impacted their operations. To generate the

information requested by this Interrogatory would require reviewing all afloat units’

local records and then prepare those records for unclassified release. Further, since

these records are not required to be kept, the final data set may still be incomplete or

otherwise inaccurate.

       To locate a record copy and declassify a single message from an afloat unit

reporting underway COVID-19 cases by classified channels, the defendant estimates it


                                             38

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would require at approximately 31.5 man-hours, and a cost of $1805.28. Further, this

process would require personnel that fleet commands do not have available to dedicate

to the task, and reviews are unlikely to result in the release of any information about the

actual operational impact.

       Defendant objects to Interrogatory Number 13 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide

the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 14:


          On page 24 of your Application, you state that “[a] SEAL who falls ill not only

                                                39

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  cannot complete his or her own mission, but risks infecting others as well,

  particularly in close quarters, including on submarines. A severe illness could require

  impractical or impossible evacuation and could jeopardize mission success. The

  Navy has a compelling interest in avoiding those foreseeable risks, especially given

  the transmissibility and virulence of COVID-19.”

         For each Navy servicemember listed in your response to Interrogatory No. 1,

  identify whether the servicemember infected other Navy servicemembers with

  COVID-19, identifying each other infected Navy servicemember (by unique ID or

  pseudonym), and whether they were infected while working in close quarters with

  each other. Provide your answer in columns AH, AI, and AJ of the spreadsheet

  attached hereto as Exhibit B.


Response to Del Toro Interrogatory No. 14:


      Response: Defendant provides the following examples in response to this

Interrogatory:

          •   In March 2020, the USS Theodore Roosevelt was delayed from ongoing

              operations in Commander of the 7th Fleet’s Area of Responsibility (“C7F

              AOR”). The C7F AOR encompasses more than 48 million square miles

              (more than 124 million square kilometers) from the Kuril Islands in the

              north to the Antarctic in the south, and from the International Date Line to

              the 68th meridian east, which runs down from the India-Pakistan

                                            40

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            border. The USS Theodore Roosevelt was on port call in Vietnam from

            March 5–9, 2020, and the first Sailor tested positive for COVID-19 on

            March 22, 2020. By March 21, 2020, 100 Sailors had tested positive, and on

            April 1, 2020, the Navy ordered the ship to evacuate the crew and begin

            offshore quarantine in Guam. By April 8, 2020, 416 Sailors had tested

            positive, and by April 16, 655 had tested positive. In total, 1,271 Sailors

            (27% of the crew) tested positive, which resulted in 26 hospitalizations,

            and 1 death. Further information is available in the subsequent Command

            Investigation, which is available here: https://perma.cc/3423-JAGB.

        •   On April 24, 2020, 18 Sailors tested positive for COVID-19 aboard the USS

            Kidd, which required the ship to cease operations and to return to port.

            The ship was operating in the 4th Fleet AOR, which encompasses the

            waters of the Caribbean, Central America, and South America. At least

            119 Sailors ultimately tested positive, which required 2 Sailors to be

            MEDEVAC’d to the United States and 15 Sailors to be transferred to USS

            Makin Island for monitoring. USS Kidd resumed operations on June 10,

            2020.

        •   USS Makin Island reported 23 unique cases between September 29, 2020,

            and October 16, 2020. The entire ship was underway and Navy tested the




                                           41

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            entire ship twice (including the US Marine Corps units on board).

            Positives and close contacts were quarantined on board.

        •   USS San Diego experienced a COVID-19 outbreak in late February 2021,

            and was quarantined for two weeks in port Manama. The entire ship was

            tested, and positives and close contacts were quarantined. The ship

            returned to sea on March 12 2021.

        •   USS Philippine Sea experienced a COVID-19 outbreak in late February

            2021, and was quarantined for four weeks in port Bahrain. The entire ship

            was tested, and positives and close contacts were quarantined.

        •   The USS Carl Vinson had 204 cases on board while underway from June

            30 through September 20, 2021, which resulted in 0 hospitalizations, 0

            deaths, and no impact to mission. The crew was 97% vaccinated. The

            USS Carl Vinson is a Nimitz-class aircraft carrier, just like the USS

            Theodore Roosevelt. Navy leadership were able to compared the path of

            the mild outbreak on the USS Carl Vinson to the outbreak on USS

            Theodore Roosevelt, and conclude that COVID-19 vaccines create a

            COVID-19 resilient force.

        •   USS Wyoming experienced a COVID-19 outbreak in August 2021; a total

            of 30 cases were debarked on 12 August. The cases were discovered in

            three rounds of testing; 13 unvaccinated Sailors initially, 14 vaccinated


                                          42

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            sailors tested positive when testing of vaccinated sailors were directed,

            and 3 more unvaccinated Sailors who had initially tested negative were

            positive in a retest three days after the first round of testing.

        •   In September 2021, USS Essex had 13 active cases while underway, and no

            hospitalizations. Including those 13 cases, the ship had experienced a

            total of 20 historic cases. By November 2, 2021, USS Essex had 6 active

            cases and 56 recovered cases for a total of 57 historical cases.

        •   While underway, the USS Charleston had 10 active cases, no

            hospitalizations, and the crew was fully immunized.

        •   On October 27, 2021, USS Columbia made a routine stop at port and

            disembarked a 25-year-old, vaccinated Sailor who had tested positive for

            COVID-19. USS Columbia was able to continue mission.

        •   The USS Pearl Harbor had three active cases while underway as of

            October 12, 2021. All were immunized, none were hospitalized, no

            deaths, and no mission impact.

        •   The USS Momsen reported three immunized Sailors tested positive while

            underway on November 10, 2021. Two days later that number increased

            to sevent. No mission impact and quarantine was conducted aboard the

            ship.




                                           43

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          •   On November 27, 2021 USS Sampson reported two servicemembers

              COVID-positive at sea in Southern California. Both had tested positive on

              final day of close contact monitoring from a previous case aboard. No

              mission impacts.

          •   In December 2021, USS Halsey after nearly a third of the crew tested

              positive for COVID-19. The ship was 99% vaccinated and there were no

              hospitalizations. The outbreak delayed a homeport shift from Hawaii to

              San Diego.

      The USS Milwaukee experienced an outbreak of COVID-19 in January 2022. The

crew was 100% vaccinated and all individuals who tested positive were either

asymptomatic or experienced only minor symptoms. None were hospitalized. The

ship was quarantined for 15 days at Naval Station Guantanamo Bay, Cuba, which

resulted in one cancelled training evolution.

      Specific Objections: Records of contract tracing are not reported to the Office of

the Chief of Naval Operations (OPNAV) or the Navy Bureau of Medicine and Surgery

(BUMED), so there is no central location for this information. Contact tracing is not a

centralized function, and in most cases, any contract tracing would be performed by an

individual’s command. Further, not all commands conduct contract tracing. It is not

proportionate to the needs of this case for Defendant to coordinate with the commands




                                           44

                                                Pls.' Resp. to Defs. Mot to Compel App. 0045
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of each of the more than 97,000 service members and seek individualized contract

tracing information for every servicemembers who has tested positive for COVID-19.

       Defendant objects to Interrogatory Number 14 insofar as it purports to require

providing the requested information in a particular format in conjunction with

Interrogatory Numbers 1–14. As detailed in the General Objections below, to provide

the information as requested by Interrogatory Numbers 1–14 would conservatively take

at least 201,714 man-hours to compile at a cost of at least $8,270,147.50 in wages alone.

Defendant thus objects to the interrelated Interrogatory Numbers 1–14 as unduly

burdensome and disproportionate to the needs of this case because the “burden” and

“expense of the proposed discovery outweighs its likely benefit” considering the “needs

of the case,” the “amount in controversy,” and “the importance of the discovery in

resolving the issues.” Fed. R. Civ. P. 26(b).

       Defendant also objects to this Interrogatory as having multiple sub-parts, as it

seeks separate information for each of the more than 97,000 individual servicemembers

who have tested positive for COVID-19.




Del Toro Interrogatory No. 15:


          On page 2 of your Application, you stated that the Court’s preliminary

  injunction “requires the Navy to assign and deploy [the Plaintiffs] without regard to

  their lack of vaccinations notwithstanding military leaders’ judgment that doing so

                                                45

                                                 Pls.' Resp. to Defs. Mot to Compel App. 0046
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  poses intolerable risks to safety and mission success.”

         Identify each military leader whose judgment you are referring to in the

  foregoing statement.


Response to Del Toro Interrogatory No. 15:


      Response: The judgment of senior military leaders is reflected in official navy

policies which Defendant has already submitted in this case. Those policies include

ALNAV 062/21 Department of Navy Mandatory COVID-19 Vaccination Policy;

NAVADMIN 190/21, Navy Mandatory COVID-19 Vaccination and Reporting Policy,

NAVADMIN 225/21, COVID-19 Consolidated Disposition Authority (CCDA);

NAVADMIN 256/21, CCDA Guidance to Commanders; NAVADMIN 007/22, U.S.

Navy COVID-19 Standardized Operational Guidance 5.0; NAVADMIN 093/22, U.S.

Navy COVID-19 Standardized Operational Guidance 6.0; Feb. 14, 2018, Under Secretary

of Defense Memorandum, Subject: DoD Retention Policy for Non-Deployable Service

Members; SECNAVINST 6120.3A, Periodic Health Assessment for Individual Medical

Readiness; OPNAVINST 1300.20, Deployability Assessment and Assignment Program;

Navy Manual of the Medical Department (MANMED), Ch. 15, Physical Examinations

and Standards for Enlistment, Commission and Special Duty; ALNAVRESFOR 010/21,

Mandatory Vaccination Coronavirus Disease 2019 for Navy Reserve Force Personnel;

SECNAV Memorandum for Commandant of the Marine Corps Chief of Naval

Operations Assistant Secretaries of the Navy General Counsel of the Navy,

                                           46

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Implementation of Consolidated Department of Defense Coronavirus Disease 2019

Force Health Protection Guidance; and prior versions of these policies.

         Defendant also refer Plaintiffs to the military leaders who have submitted

declarations in support of Defendants in this case, including Admiral William K.

Lescher; Admiral Daryl L. Caudle, Vice Admiral William Merz, Captain Joon Yun, and

Captain Lanny F. Littlejohn.




Del Toro Interrogatory No. 16:


           Identify the total number of Naval Special Warfare missions since January 1,

  2012 that could not be completed and/or could not achieve mission success because

  a servicemember became ill with a disease that is transmissible from human to

  human. Answer this interrogatory using your definition of “missions that could not

  be completed” and “mission success” as used on page 24 of your Application.


Response to Del Toro Interrogatory No. 16:


         Response: Defendant refers to and incorporates the response to Interrogatory

No. 8.

         Specific Objections: Defendant objects to scope of this request as unduly

burdensome seeking information from more than 10 years. The information sought is

not centrally collected or stored, so it would require reviewing individual medical



                                             47

                                               Pls.' Resp. to Defs. Mot to Compel App. 0048
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   records for all associated servicemembers or individual unit records covering a span of

   10 years. The burden associated with such a search is outweighed by any potential

   benefit from the information sought.

            Defendant also objects that characterizing impact to mission execution is vague

   and it would be difficult, if not impossible, to conduct a search through over a decade’s

   worth of records for responsive information.




   Del Toro Interrogatory No. 17:


              Identify the total number of Navy enlistments for Fiscal Years 2012 through

        2022. State in your answer the totals for each calendar month of each Fiscal Year.


   Response to Del Toro Interrogatory No. 17:


            Response: Defendant provides the following information about Navy

   ascensions by fiscal year, which includes both active and reserves. The year 2022

   reflects partial data.




2012       2013     2014     2015     2016      2017     2018     2019     2020     2021       2022
39509      43294    36677    38049    34194     38672    41545    41562    41589    36292      19627




                                                48

                                                  Pls.' Resp. to Defs. Mot to Compel App. 0049
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           Defendant provides the following information about Navy ascensions organized

   by calendar month, which includes both active and reserves.

         Jan      Feb    Mar      Apr   May     June    July    Aug    Sept     Oct    Nov       Dec
2012    2872     2961    3429    3312   3166    4004    3979    4438   4009    2495    3316      2799
2013    3444     3264    3615    3731   3740    4424    4497    4143   3826    2381    2720      2416
2014    3624     3045    3036    2209   2176    3584    3987    3658   3841    2945    2627      2547
2015    3151     3275    3266    3105   3105    3592    4014    3359   3063    2440    3002      2914
2016    3164     2901    3706    2984   3220    3722    2584    2154   1403    2133    2951      2512
2017    3024     2825    3310    3195   3429    3778    4021    3990   3504    2269    3306      3105
2018    3600     3529    3183    3004   3660    3421    4575    4361   3532    3046    3479      3167
2019    3981     2914    2296    2764   2908    4452    4923    4111   3521    2500    3488      3409
2020    4144     3376    2413    1045   2546    3370    5363    5105   4830    2457    2994      2687
2021    3443     2693    3028    2125   2572    4373    3800    3655   2465    1804    3317      2427
2022    3510     2812    2156    1705   1896



   Del Toro Interrogatory No. 18:


               Identify the total number of new recruits for Naval Special Warfare for Fiscal

       Years 2012 through 2022. State in your answer the totals for each calendar month of

       each Fiscal Year as well as the totals for each service type (SEAL, SWCC, Diver, EOD).


   Response to Del Toro Interrogatory No. 18:


           Response: Navy SEALs (who consist of Naval Special Warfare Officers and

   Special Warfare Operators (SO)) and SWCCs (also known as Special Boat Operators

   (SB)) are recruited into the Navy and upon completion of NSW training are distributed

   to the Fleet by Naval Special Warfare Detailing and Placement Office. SEAL and SB

   personnel are managed and accounted for during their entire career only by the NSW

   Distribution and Assignment Managers.
                                                49

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          Navy EOD and Diver Technician distribution does not fall under the authority of

NSW Detailing and Placement Office; they are managed by their own EOD Detailing

and Placement organizations. They are attached to NSW in support positions during

the execution of SEAL and SWCC missions, functions, and tasks.

          The embedded table identifies new recruits for SEAL, SWCC, Diver, and EOD.

NSWC obtained data on Navy Divers and EOD Technicians from Naval Education and

Training Command and the EOD Navy Officer Community Manager.




                    SPECIAL WARFARE OPERATOR (SO) RECRUITS REPORTED TO BUD/S
              2012      2013   2014   2015   2016   2017   2018   2019    2020   2021   *2022
   Jan         109       0     127    131    177    163     3      1        0     0       1
   Feb          1       136     1      0      0      2     178    133      186   153     138
   Mar         124       1     130    147    162    156     1      0        0    171      0
   Apr          0       135     0      1      1      1     154    131       0     0      130
   May         138       0     132    144    151    149    138    150      153   168      1
   Jun          0       133     1      1      1      0      0      0        0     0
    Jul         1        1     125    151    148    161    232    147      146   178
   Aug         132      114     0      0      2      0      0      0        0     0
   Sep          0        0      0      79     2      5      14    112      136    1
   Oct         136      132    133    106    161    177    167     65      27    138
   Nov          0       132     0     147    154     0      1      0        0     0
   Dec         135       0     129     2      0     158    162    188      149   142
CY Total       776      784    778    909    959    972    1050   927      797   951     270




                                                    50

                                                      Pls.' Resp. to Defs. Mot to Compel App. 0051
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             SPECIAL WARFARE BOAT OPERATOR (SB) RECRUITS REPORTED TO BCT
            2012   2013   2014   2015   2016   2017   2018   2019    2020   2021   *2022
   Jan      40      0      37     33     36     0      0      0        0     0       0
   Feb       0     41      0      0      0      1      0      1        0     0       1
  Mar       44      0      35     35     33     44     0      0        0     58      0
   Apr       1     43      0      0      0      0      47     55       0     0      63
  May       41      0      31     30     32     46     46     39      90     61      0
   Jun       0     26      0      0      0      0      1       0       0      0
   Jul       0      0      36     37     23     44     51     88      85     63
   Aug      90     26       0     0      0      0       0     0        0     1
   Sep       0      0      0      0      0      0      0      1       14     0
   Oct      44     33      40     36     38     36     53     54      59     56
   Nov       1     35      0      43     42     0      0      0       0      0
   Dec       43     0      33     0       0     41     44     59      63     57
 CY Total   304    204    212    214    204    212    242    297      311   296     64




                    NAVY DIVER (ND) RECRUITS REPORTED TO TRAINING
            2012   2013   2014   2015   2016   2017   2018   2019    2020   2021   *2022
   Jan      23      0      0      0      0      28     27     0       27     35     39
   Feb      18     22      46     25     18     21     1      31      31     28      0
  Mar       22     24      0      26     34     0      23     0       0      0      39
   Apr       0      0      30     0      0      25     29     44       6     36      0
  May       19     20      0      25     19     24     25     41       0     28     32
   Jun      21     22      22     29     23     28     24      0      32      0
   Jul      21     19      42     26     0      0      24     78      37     32
   Aug      24     27      0      0      30     35      0     0       35     24
   Sep       0      0      0      22     33     24     28     42      45     25
   Oct      22     22      40     0      0      0      0      0        0     1
   Nov       0     19      0      19     23     0      0      27       0     14
   Dec       21     23     24     20      0     26     0      0       30     20
 CY Total   191    198    204    192    180    211    181    263      243   243     110




                                               51

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     EXPLOSIVE ORDANANCE DISPOSAL TECHNICIAN (EOD) RECRUITS REPORTED TO TRAINING
            2012     2013   2014   2015   2016   2017   2018   2019    2020   2021   *2022
   Jan       24       24     0      0      0      31     31     32      31     36     44
   Feb       25       26     72     64     32     30     0      33      24     36      0
  Mar        30       0      0      1      34     0      30     0        0     0      41
   Apr       0        0      36     0      0      36     34     31       0     37      0
  May        28       25     0      38     24     42     0      34       0     28     44
   Jun       29       23     34     39     22     31     30      0      38     0
   Jul       34       0      41     34     1      0      31     76      54     41
   Aug       0        40      0     0      22     27      0     0        0     35
   Sep       0        40     33     33     13     21     28     39      71     33
   Oct       26       31     37     0      0      0      0      0        2     0
   Nov       0        0       0     32     31     32     31     31       0     14
   Dec       24       32     37     32      0     32     0      0       30     30
 CY Total   220      241    290    273    179    282    215    276      250   290     129




            NAVAL SPECIAL WARFARE OFFICER (118X) RECRUITS REPORTED TO BUD/S
            2012     2013   2014   2015   2016   2017   2018   2019    2020   2021   *2022
   Jan       10       2      3      1      3      9      3      12       7     5       0
   Feb       3        1      4      2      12     3      11     8        1     6       5
  Mar        13       1      1      1      8      7      3      14       9     4       0
   Apr       2        11     4      7      3      16     9      6        7     4       9
  May        6        10     9      2      5      6      9      2       13     1       7
   Jun       17       12     13     19     11     15     12     5        7     14      8
   Jul       15       8      13     13     21     9      6      11       9     10
   Aug       5        9      7      5      4      12     12     10      12     11
   Sep       5        6      8      8      6      4      0      2        1     3
   Oct       6        2      4      1      4      8      7      8        5     8
   Nov       9        6      6      4      13     0      2      0        3     1
   Dec       8        2      2      3      0      7      1      1        0     7
 CY Total    99       70     74     66     90     96     75     79      74     74     29




                  EXPLOSIVE ORDANANCE DISPOSAL 119X REPORTED TO TRAINING
            2012     2013   2014   2015   2016   2017   2018   2019    2020   2021   2022
  Total      34       39     32     34     33     31     31     31      32     36     33


                                                 52

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Del Toro Interrogatory No. 19:


         Identify the total number of Navy servicemembers who have received the

  Johnson & Johnson (Janssen) COVID-19 vaccine.


Response to Del Toro Interrogatory No. 19:


      Response: As of June 17, 2022, 31,767 Navy servicemembers have received the

Johnson & Johnson (Janssen) COVID-19 vaccine.




Del Toro Interrogatory No. 20:


         Identify the total number of Navy servicemembers who have received a

  booster dose of a COVID-19 vaccine.


Response to Del Toro Interrogatory No. 20:


      Response: As of June 17, 2022, 116,965 Navy servicemembers have received a

booster dose of a COVID-19 vaccine.




Del Toro Interrogatory No. 21:


         Identify the total number of Navy servicemembers who have received labeled

  doses of Comiraty vaccine.


                                        53

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Response to Del Toro Interrogatory No. 21:


      Response: To date, the Department of Defense has received over 35,000 doses of

Comirnaty-labeled vaccine.

      Specific Objections: Defendant responds that it is not aware of any COVID-19

vaccine with the name “Comiraty” (sic), and answers this Interrogatory assuming

Plaintiffs are referring to the brand name of the Pfizer-BioNTech vaccine “Comirnaty.”

      To the extent that Plaintiffs seek information about the Pfizer-BioNTech dose

with a Comirnaty label, Defendant objects to the relevance of Defendants’ position is

that all EUA-authorized Pfizer-BioNTech doses for adults are interchangeable for the

purposes of the military’s vaccination requirement. Further, the burden of tracking

down exactly which doses from a Comirnaty-labeled were provided to service members

as opposed to non-service members who receive care at military facilities would be

unduly burdensome.




Del Toro Interrogatory No. 22:


         Identify the total number of Navy servicemembers who have reported adverse

  reactions from any COVID-19 vaccine, including the numbers of adverse reactions

  reported for each of the following vaccines: (1) Moderna, (2) Pfizer, (3) Johnson &

  Johnson (Janssen), and (4) Comiraty.



                                           54

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Response to Del Toro Interrogatory No. 22:


      Response: For the purposes of responding this interrogatory, Defendant

assumes that “reported adverse reactions” means reported adverse reactions through

the Centers for Disease Control’s Vaccine Adverse Event Reporting System (CDC

VAERS). As of June 17, 2022, Navy servicemembers have reported 601 adverse reactions

through CDC VAERS. Of those, 225 were from servicemembers who had received a

Moderna COVID-19 vaccine, 47 were from servicemembers who had received a

Johnson & Johnson (Janssen) COVID-19 vaccine, and 329 were from servicemembers

who received a COVID-19 vaccine manufactured by Pfizer/BioNTech (which includes

Comirnaty).

      Specific Objections: Defendant responds that it is not aware of any COVID-19

vaccine with the name “Comiraty” (sic), and answers this Interrogatory assuming

Plaintiffs are referring to the brand name of the Pfizer-BioNTech vaccine “Comirnaty.”

      Defendant objects that this request includes multiple subparts, which should

have been propounded as separate interrogatories.

      Defendant also objects to any use of this data to imply that any reported event

was actually caused by a COVID-19 vaccine. “One of the main limitations of VAERS

data is that it cannot determine if the vaccine caused the reported adverse event. This

limitation has caused confusion in the publicly available data from VAERS WONDER,

specifically regarding the number of reported deaths. There have been instances where

                                           55

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people have misinterpreted reports of deaths following vaccination as deaths caused by

the vaccines; that is not accurate. VAERS accepts all reports of adverse health events

following vaccinations without judging whether the vaccine caused the adverse health

event. Some reports to VAERS represent true vaccine reactions and others are

coincidental adverse health events and not related to vaccination. Overall, a causal

relationship cannot be established using information from VAERS report alone.”

VAERS FAQs, “What are the strengths and limitations of VARES?”, available at

https://vaers.hhs.gov/faq.html.




Del Toro Interrogatory No. 23:


         Identify the total number of Navy servicemembers who are considered high-

  risk for COVID-19 complications, as defined in NAVADMIN 07/22.


Response to Del Toro Interrogatory No. 23:


      Response: As of 17 June 2022, 131,634 Navy service members are considered

high-risk for COVID-19 complications, as defined by NAVADMIN 07/22.




                                           56

                                             Pls.' Resp. to Defs. Mot to Compel App. 0057
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                        GENERAL OBJECTIONS AND
               RESPONSES TO INSTRUCTIONS AND DEFINITIONS

       General Objection to Interrogatory Numbers 1-14. Defendant objects to

Interrogatory Numbers 1-14 collectively as unduly burdensome and disproportionate to

the needs of the case. Those Interrogatories request Defendant to provide information

in a particular format and ask Defendant to identify at least 14 different categories of

information for each of the more than 97,000 individual Navy service members who

have ever tested positive for COVID-19. The requested information is not maintained

in the format requested by Plaintiffs, and the information is not readily organized in a

way to provide in the format requested by Plaintiffs. In the responses above, Defendant

has endeavored to provide information responsive to Interrogatories 1-14, but it cannot

create the spreadsheet requested by Plaintiffs without incurring significant costs that

are far beyond what is reasonable for this case. See Fed. R. Civ. P. 26. To determine the

information sought by Interrogatories 1-14 for each of the 97,325 individual

servicemembers (as of June 20, 2022) who have tested positive for COVID-19 would

conservatively take 201,714 man-hours of work and cost $8,270,147.50 in wages alone.

       For Interrogatory Numbers 6, 7, 8, 9, and 14, Defendant estimates it would

require 2 hours for local unit medical personnel to search medical records and/or

interview unit personnel for each of the individuals who have tested positive for

COVID-19. That would require 194,650 man-hours of unit medical personnel. Once

those individual unit medical personnel completed collecting that data, Defendant

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estimates that it would take at least an additional 112 hours (or 14 working days) to

tabulate and validate responses. The total cost would conservatively be $7,922,982,

based on medical unit personnel average O-3 hourly rate and O-4 rate for the personnel

compiling, tabulating, and verifying responses.

       For Interrogatory Numbers 10, 11, 12, and 13, units are not required to report

specifically which sailor or sailors impacted their operations. To generate the

information requested by this Interrogatory would require reviewing all afloat units’

local records and then prepare those records for unclassified release. Further, since

these records are not required to be kept, the final data set may still be incomplete or

otherwise inaccurate.

       To locate a record copy and declassify a single message from an afloat unit

reporting underway COVID-19 cases by classified channels, the defendant estimates it

would require at approximately 31.5 man-hours, and a cost of $1805.28. Further, this

process would require personnel that fleet commands do not have available to dedicate

to the task, and reviews are unlikely to result in the release of any information about the

actual operational impact.

       To provide individualized responses to Interrogatory Number 2, Defendant

estimates that it would take approximately five days for an O-4 action officer at Chief of

Naval Operations, Plans and Strategy (OPNAV N3N5) to contact each Naval Special

Warfare unit, 2 days for each of an estimated 24 units for O-4 administrative officer to


                                            58

                                              Pls.' Resp. to Defs. Mot to Compel App. 0059
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search unit records, screen records for release, and transmit to OPNAV in a standard

format. And even after expending nearly 400 man-hours, the collected information may

still not be complete or accurate since this information is not required to be maintained

and would not include SEALs, EODs, or Divers that are not currently under NSWC.

The cost of conducting the search and the production of the individualized information

in the format requested in Interrogatory Number 2 would cost approximately

$21,173.50.

       In total, providing responses to Interrogatory Numbers 1–14 in the format

requested by Plaintiffs would require approximately 201,714 man-hours of work and

cost $8,270,147.50 in wages alone. Moreover, it is not even clear whether the

individualized information sought by Plaintiffs even exists, so even if the Navy

redirected significant resources to answer these interrogatories, Plaintiffs still may not

get the information they seek.

       Relevance and Proportionality. Defendant’s response is provided in accordance

with Federal Rule 26(b)(1), which permits the discovery of any information, not

privileged, that is both (1) relevant to any party’s claim or defense, and (2) proportional

to the needs of the case. Defendants object to the interrogatories and accompanying

instructions and definitions to the extent they impose obligations in excess of those

imposed by the Federal Rules of Civil Procedure. Defendants will comply with the

Federal Rules.


                                             59

                                               Pls.' Resp. to Defs. Mot to Compel App. 0060
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       No waiver. Defendant does not, by providing such information, waive any

objection to its admissibility on the grounds of relevance, proportionality, accessibility,

materiality, or other appropriate ground. The inadvertent production by Defendants of

information or documents protected by any privilege or protection shall not constitute a

waiver of the applicable privilege or protection as to any information or documents

disclosed. And the identification of any individual in response to an interrogatory or

the disclosure that a particular communication occurred does not waive any applicable

privilege over the contents of relevant conversations.

       Military Decisionmaking. Defendant objects to these interrogatories as unduly

burdensome and not proportionate to the needs of the case insofar as they seek

information to undertake an independent evaluation of military data. See Doe 2 v.

Shanahan, 917 F.3d 694, 737 (D.C. Cir. 2019) (Williams, J., concurring) (noting the court’s

role in evaluating military policy is so circumscribed that extra-record evidence and

discovery is “quite beside the point”) (quoting Goldman v. Weinberger, 475 U.S. 503, 509

(1986)); see also id. (noting that the Supreme Court in “Rostker chastised the district court

for ‘palpably exceed[ing] its authority’ in ‘relying on [such] testimony’” (quoting

Rostker, 453 U.S. at 81)). Courts “readily acknowledge” that such decisions “are not

lightly to be overruled by the judiciary” and apply that deference by focusing their

review on the military justifications reflected in the administrative record. Pruitt v.

Cheney, 963 F.2d 1160, 1166-67 (9th Cir. 1992) (in service member case asserting


                                             60

                                               Pls.' Resp. to Defs. Mot to Compel App. 0061
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constitutional claims, instructing that military deference “is best applied in the process

of judging whether the reasons put forth on the record . . . are rationally related to any

of the Army’s permissible goals”); cf. Austin v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301,

1302 (2022) (emphasizing that “[t]he Court ‘should indulge the widest latitude’ to

sustain the President’s ‘function to command the instruments of national force,’” and

citing Gilligan v. Morgan, 413 U.S. 1 (1973) and Dep’t of Navy v. Egan, 484 U.S. 518 (1988)).

       Classified Information. Defendants object to this request to the extent it seeks

information that is subject to the privilege or statutory protections for national security

information, including any information that is classified under Executive Order. The

disclosure of such information could reasonably be expected to harm the national

security interests of the United States and, thus, any such responsive information is

withheld on the basis of this objection.

       Definitions. Plaintiffs’ first set of interrogatories included defined terms that

were not used in any interrogatory that was served to the Secretary of Navy. Plaintiffs’

proposed definition of the terms “concerning,” “document,” “documents,” and

“Lescher Declaration” are irrelevant to this set of interrogatories. Defendant objects to

the definition of “identify” for “natural person” insofar as the interrogatory seeks

information protected by statute or regulation. Defendant also objects to Plaintiffs’

“Definitions” to the extent they seek to impose unreasonable or burdensome obligation

beyond what is required by the Federal Rules of Civil Procedure and object to any


                                             61

                                               Pls.' Resp. to Defs. Mot to Compel App. 0062
Case 4:21-cv-01236-O Document 207 Filed 11/04/22            Page 66 of 75 PageID 7214



meaning or interpretation onto the requests other than that evident from the plain and

ordinary meaning of the words used therein. Defendants will read and respond to

Plaintiffs’ requests with the understanding that these terms have their plain and

ordinary meaning in standard English usage.

       Instructions — Generally. Plaintiffs’ first set of interrogatories include

instructions that are not relevant. For example, Instructions 7 and 11 are instructions

for describing documents, but the interrogatories do not request information about

documents.

       Instruction 1 — Scope. Defendant objects to Instruction 1 as overly broad and

not proportionate to the needs of the case. Defendant’s response to this interrogatory

does not purport to provide “all responsive information . . . in the possession, custody,

or control of [the Secretary of Navy’s] attorneys, agents, employees, independent

contractors, and all other persons acting on behalf of each of them or any of them.”

Instead, Defendants will provide non-privileged, responsive information after a

reasonable search as required by the Federal Rules of Civil Procedure.

       Instruction 3 — Omission. Defendant objects to Instruction 3 insofar as it refers

to information that Defendants have not furnished because of the burden of providing

that information or because of any other objection set forth in this response.

       Instruction 6 — Privilege Log. Defendant objects to Instruction 6 insofar as it

exceeds Defendant’s obligations under the Federal Rules of Civil Procedure and the


                                            62

                                              Pls.' Resp. to Defs. Mot to Compel App. 0063
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parties’ joint proposed discovery plan, which included production of an appropriate

privilege log within two weeks of document productions. Defendant further objects to

preparation of a privilege log concerning communications between representatives of

Defendants and Defendants’ counsel related to the subject of this litigation and the

claims and defenses. Preparing a privilege log of communications with counsel would

be burdensome and wasteful, as it is clear that communications with counsel after that

date are subject to the attorney client privilege, work product doctrine, and/or common

interest privilege.

       Instruction 7. Defendant objects to Instruction 7 insofar as it exceeds

Defendant’s obligations under the Federal Rules of Civil Procedure.

       Instruction 13 — Time Period. Defendant objects to the identification of a

supposedly “relevant time period” dating back to October 2019 and forward to a trial

date that may never happen. The sole interrogatory served to the Secretary of Defense

requests information “on or before August 24, 2021” and any information past that date

is not relevant to that interrogatory.



Dated: July 15, 2022                         Respectfully submitted,

                                             BRIAN M. BOYNTON
                                             Principal Deputy Assistant Attorney
                                             General

                                             ALEXANDER K. HAAS
                                             Director, Federal Programs Branch


                                            63

                                              Pls.' Resp. to Defs. Mot to Compel App. 0064
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                                              ANTHONY J. COPPOLINO
                                              Deputy Director

                                              /s/ Zachary A. Avallone
                                              ANDREW E. CARMICHAEL
                                              AMY E. POWELL
                                              Senior Trial Counsel
                                              ZACHARY A. AVALLONE
                                              CATHERINE M. YANG
                                              Trial Attorneys
                                              United States Department of Justice
                                              Civil Division, Federal Programs Branch
                                              1100 L Street, N.W.
                                              Washington, DC 20005
                                              Tel: (202) 514-2705
                                              Fax: (202) 616-8470
                                              Email: zachary.a.avallone@usdoj.gov

                                              Counsel for Defendants




                              CERTIFICATE OF SERVICE

       I certify that I served a copy of the foregoing requests on Plaintiffs’ counsel via
email on July 15, 2022.



                                                  /s/ Zachary A. Avallone




                                             64

                                               Pls.' Resp. to Defs. Mot to Compel App. 0065
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                                      Pls.' Resp. to Defs. Mot to Compel App. 0066
Case 4:21-cv-01236-O Document 207 Filed 11/04/22   Page 70 of 75 PageID 7218




                                      Pls.' Resp. to Defs. Mot to Compel App. 0067
Case 4:21-cv-01236-O Document 207 Filed 11/04/22                 Page 71 of 75 PageID 7219



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS


U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
                      Plaintiffs,
                                                             Case No. 4:21-CV-01236-O
v.

JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
                                Defendants.



                            INTERROGATORY VERIFICATION

       I am the EpiData Center Department Head at the Navy-Marine Corps Public Health

Center. I certify, based on reasonable inquiry, that data submitted in response to Interrogatory

No. 4, as they pertain to vaccination data extracted from the Navy’s Medical Readiness Report

System, are true and correct to the best of my knowledge, information and belief. I verify under

penalty of perjury that the foregoing is true and correct.




                                                               G. NOWAK




                                                   Pls.' Resp. to Defs. Mot to Compel App. 0068
Case 4:21-cv-01236-O Document 207 Filed 11/04/22                 Page 72 of 75 PageID 7220



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS


U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
                      Plaintiffs,
                                                            Case No. 4:21-CV-01236-O
v.

JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
                                Defendants.



                            INTERROGATORY VERIFICATION

       I am LT Mariano Gabriel D. Veloria at Navy Recruiting Command. I have read the

response to Interrogatory No. 17. I certify, based on reasonable inquiry, that the foregoing

answers, as they pertain to Navy Recruiting Command, are true and correct to the best of my

knowledge, information and belief. I verify under penalty of perjury that the foregoing is true

and correct.



                                                            _______________________

                                                            M. D. VELORIA




                                                  Pls.' Resp. to Defs. Mot to Compel App. 0069
Case 4:21-cv-01236-O Document 207 Filed 11/04/22                   Page 73 of 75 PageID 7221



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS


U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
                      Plaintiffs,
                                                             Case No. 4:21-CV-01236-O
v.

JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
                                Defendants.



                            INTERROGATORY VERIFICATION

       I am a Senior Medical Advisor for Medical Affairs at the Defense Health Agency. I have

read the response to interrogatories 19, 20 & 23. I certify, based on reasonable inquiry, that the

foregoing answers are true and correct to the best of my knowledge, information and belief. I

verify under penalty of perjury that the foregoing is true and correct.



                                                              _______________________

                                                              S.P. MCKIERNAN




                                                   Pls.' Resp. to Defs. Mot to Compel App. 0070
Case 4:21-cv-01236-O Document 207 Filed 11/04/22                   Page 74 of 75 PageID 7222



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE NORTHERN DISTRICT OF TEXAS


U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
                      Plaintiffs,
                                                             Case No. 4:21-CV-01236-O
v.

JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
                                Defendants.



                            INTERROGATORY VERIFICATION

       I am Chief of the Immunization and Healthcare Division at the Defense Health Agency. I

have read the response to interrogatory 22. I certify, based on reasonable inquiry, that the

foregoing answers are true and correct to the best of my knowledge, information and belief. I

verify under penalty of perjury that the foregoing is true and correct.



                                                              _______________________

                                                              T.S. RANS




                                                   Pls.' Resp. to Defs. Mot to Compel App. 0071
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                                      Pls.' Resp. to Defs. Mot to Compel App. 0072


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