Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 175

Filed 11/28/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Margaret M. Sweeney)

ALGONQUIN HEIGHTS, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) )

No. 97-582C (Judge Margaret M. Sweeney)

DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO TAKE A DEPOSITION AFTER THE DISCOVERY DEADLINE Pursuant to Rule 7(b) of the Rules of the Court of Federal Claims ("RCFC"), the United States respectfully requests leave to take the deposition of David Smith on January 9 and 10, 2008. Defendant has consulted with plaintiffs' counsel, Harry Kelly, who agrees with the relief requested with respect to scheduling the deposition of David Smith. The Court has enlarged the period to conduct ripeness discovery in these cases several times. See Order of Judge Hodges (Jan. 2, 2007); Order of Judge Hodges (May 15, 2007); Order of Judge Hodges (Aug. 24, 2007). Most recently, on September 21, 2007, the Court entered an order providing that discovery on ripeness would close on December 7, 2007. Order of Judge Hodges at 1 (Sept. 21, 2007).

Case 1:93-cv-00655-MMS

Document 175

Filed 11/28/2007

Page 2 of 4

On Wednesday, November 21, 2007, plaintiffs served an expert report prepared by David Smith of Recapitalization Advisors. Under this Court's rules, where the Court has established no specific period for expert discovery, any expert reports must be served "at least 70 days before the scheduled close of discovery." RCFC 26(a)(2). Thus, plaintiffs' expert report should have been served no later than September 28, 2007.1 Mr. Smith's report concerns nearly 100 HUD-insured housing projects in numerous cities across the United States. The United States requires time to analyze the methodologies, calculations and conclusions in this report. Because the United States previously noticed eight depositions during the weeks of November 26, 2007 and December 3, 2007, as contemplated by the Court's September 23, 2007 scheduling order, the United States will not be prepared to take a deposition of Mr. Smith concerning his recently-received report by the current discovery deadline. Consequently, undersigned counsel conferred with counsel for plaintiffs and the parties have agreed that Mr. Smith's deposition should be conducted on January 9 and 10, 2008.2 For these reasons, the United States respectfully requests that Court grant leave to take a deposition of David Smith on January 9 and 10, 2008.

If the Court declines to grant this motion, the United States will request that the Court strike Mr. Smith's expert report as untimely. Plaintiffs reserve the right to oppose any such motion. Mr. Smith is both a fact witness and a putative expert. The United States noticed a deposition of Mr. Smith for December 4, 2007 to obtain certain factual information. If this motion is granted, the parties have agreed that the December deposition (and related subpoena) will be cancelled and that the January deposition will cover both factual testimony and the opinions expressed in the recently-served expert report. 2
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Case 1:93-cv-00655-MMS

Document 175

Filed 11/28/2007

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ David A. Harrington DAVID A. HARRINGTON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 November 28, 2007 Attorneys for Defendant

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Case 1:93-cv-00655-MMS

Document 175

Filed 11/28/2007

Page 4 of 4

CERTIFICATE OF FILING I hereby certify that on the 28th day of November 2007, a copy of "DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO TAKE A DEPOSITION AFTER THE DISCOVERY DEADLINE" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ David A. Harrington