Appendix to Plaintiffs' Response to Motion to Compel — U.S. Navy SEALs 1-3 v. Austin
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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/
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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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 22 of 75 PageID 7170
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
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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
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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
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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
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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
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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 30 of 75 PageID 7178
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
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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
Pls.' Resp. to Defs. Mot to Compel App. 0028
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 32 of 75 PageID 7180
(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
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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 33 of 75 PageID 7181
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
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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
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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 35 of 75 PageID 7183
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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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 36 of 75 PageID 7184
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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 38 of 75 PageID 7186
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
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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
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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 40 of 75 PageID 7188
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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Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 41 of 75 PageID 7189
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
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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
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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.
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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
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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
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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,
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 65 of 75 PageID 7213
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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 67 of 75 PageID 7215
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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 68 of 75 PageID 7216
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
Case 4:21-cv-01236-O Document 207 Filed 11/04/22 Page 75 of 75 PageID 7223
Pls.' Resp. to Defs. Mot to Compel App. 0072
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