Free Response to Motion - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

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

No. 93-655C (Judge Robert H. Hodges)

No. 97-582C (Judge Robert H. Hodges)

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO EXTEND THE DISCOVERY DEADLINE Plaintiffs in these actions have filed an "emergency motion" to extend the period for discovery through the end of September 28, 2007. This "emergency" is entirely of plaintiffs' own making. Ripeness discovery has been open for over one year, the Court has twice extended the period for discovery, and the United States began taking ripeness depositions in June in order to meet the judicially-established deadline. Moreover, the United States repeatedly urged the plaintiffs to take steps to complete their discovery by the August 31, 2007 deadline and, indeed, requested on multiple occasions that plaintiffs' identify witnesses so that depositions could be arranged. In spite of these efforts, plaintiffs failed to consult with the United States about the

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scheduling of their own depositions, failed to notify the United States of prospective witnesses or subject areas and, until yesterday, had served no deposition notices. Now, mere days before discovery is to close, plaintiffs have served six deposition notices that require the United States to locate, identify and prepare witnesses to testify on 16 vaguely defined subjects with respect to over 70 different HUD projects. Plaintiffs have failed to provide the "reasonable notice" required by RCFC 30(b). See In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 230 (N.D. Ill. 2005). Accordingly, the Court should deny plaintiffs' motion for a third enlargement of the period for ripeness discovery and enter a protective order with respect to the plaintiffs' recently-noticed depositions. BACKGROUND On August 14, 2006, the Court directed that the parties commence discovery on ripeness and provided that the discovery period would close January 31, 2007. Order of Judge Hodges (Aug. 14, 2006) (docket no. 138). At the request of the parties, the Court extended the discovery deadline to May 31, 2007, and then, to August 31, 2007. Order of Judge Hodges (Jan. 2, 2007) (docket no. 142); Order of Judge Hodges (May 15, 2007). The United States originally proposed that the second enlargement be only 30 days, but acquiesced to plaintiffs' request that the parties seek a longer enlargement. Letter from David A. Harrington to Harry Kelly at 3 (Apr. 26, 2007) (attached as Exhibit A) (at the same time urging plaintiffs to take steps "to enable deposition discovery to go forward"). Plaintiffs objected to the United States' efforts to begin deposition discovery in June 2007. Nevertheless, by June 21, 2007, the United States had notified plaintiffs of the depositions it expected to take and proposed

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a schedule that would complete deposition discovery by the August 31, 2007 deadline. See Letter from David A. Harrington to Harry Kelly (June 21, 2007) (attached as Exhibit B). Five days later, on June 26, 2007, the United States presented a revised deposition schedule to accommodate scheduling requests of plaintiffs and their counsel. Letter from David A. Harrington to Harry Kelly at 1 (June 26, 2007) (attached as Exhibit C). The letter stated: Given that many open days exist in July and August and that substantial resources are available to a national firm such as Nixon Peabody, we do not agree to [plaintiffs'] proposal to extend the discovery deadline, which has already been extended twice. If taking depositions on open dates are not feasible, however, we are willing to consider double tracking depositions to enable you to complete deposition discovery before August 31, 2007. Id. (emphasis added). Despite this offer, plaintiffs did not attempt to schedule at that time any depositions in either July or August 2007. By early August, plaintiffs still had not noticed any depositions. Noting that the period for discovery was coming to a close, the United States wrote plaintiffs' counsel urging them to confer about preferred dates and places if they wished to take depositions: As you are aware, the United States consulted with you about preferred deposition locations and times, and worked to facilitate a mutually acceptable schedule for needed depositions. The vast majority of plaintiffs' requests were accommodated. To date, we have received no similar inquiries about depositions of Government witnesses. Less than four weeks remain before the close of discovery. If plaintiffs intend to take any ripeness depositions, please notify us promptly so that witnesses can be informed, necessary travel arranged, appropriate preparations made, and a mutually agreeable schedule established. Letter from David A. Harrington to Harry Kelly at 1 (Aug. 6, 2007) (attached as Exhibit D). When plaintiffs still did not respond, the United States again wrote to plaintiffs' counsel:

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As you are well aware, the period for ripeness discovery has been open for over a year and is rapidly drawing to a close. In my August 6, 2007 letter, I explained that we had received no inquiries from plaintiffs about depositions of Government witnesses and urged that you arrange any such depositions promptly "so that witnesses can be informed, necessary travel arranged, appropriate preparations made, and a mutually agreeable schedule established." Letter from David A. Harrington to Harry J. Kelly at 1 (Aug. 6, 2007). Over one week has passed, during which time the United States has taken eight ripeness depositions, and still plaintiffs have neither inquired about the availability of witnesses nor served deposition notices. You have in the past suggested that plaintiffs were planning to take ripeness depositions. If that is still the case, your delay in serving notice is prejudicial and reflects a lack of professional courtesy that stands in stark contrast to our own ongoing efforts to accommodate the schedules and preferences of you and your clients. If plaintiffs intend to take any ripeness depositions, please hand serve deposition notices immediately, but in no event later than 2:00 p.m., Friday, August 17, 2007, so that we can determine whether we can accommodate your requests or should seek a protective order. Letter from David A. Harrington to Harry Kelly at 1 (Aug. 15, 2007) (attached as Exhibit E). Still no deposition notices were served by plaintiffs. E-mail from David A. Harrington to Harry Kelly (Aug. 17, 2007) (attached as Exhibit F). Rather, after the close of business on Friday, August 17, 2007, plaintiffs filed an "emergency motion" seeking to extend the deadline for discovery in these actions. ARGUMENT Plaintiffs have failed to establish good cause for further extending the discovery deadline in this action. They have been provided over one year to conduct written and deposition discovery. The fact that they have not fully taken advantage of the opportunity does not constitute a basis for altering the Court-established deadline. Indeed, the United States

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repeatedly urged plaintiffs to take the steps necessary to schedule depositions within this deadline. Plaintiffs contend that the United States "monopolized all of the time available for taking depositions in this case." Pls.' Mot. at 5. Plaintiffs statement is factually inaccurate. On 24 business days during the months of July and August 2007, no ripeness depositions were taken by the United States. Further, the fact that the United States noticed depositions did not prevent plaintiffs from doing the same. Two months ago, on June 27, 2007, the United States offered to work with plaintiffs to schedule any depositions that they wished to take. Ex. C. In so doing, the United States specifically offered to double track depositions to enable plaintiffs to meet the August 31, 2007 deadline. Plaintiffs' counsel ­ Nixon Peabody ­ is one of the largest law firms in the United States, which, according to its own website, employs over 700 attorneys. It simply is not credible, with the resources available to plaintiffs and the cooperation offered by the United States, that the plaintiffs were unable to complete discovery by the August 31, 2007 deadline in these actions. Yesterday, August 20, 2007, plaintiffs served their first deposition notices in these action. These notices seek to depose "the United States," pursuant to Rule 30(b)(6), on August 30, 2007, and August 31, 2007, and request that the United States identify, prepare and produce "the most knowledgeable person" to testify about 16 different subject areas and over 70 different HUD projects. Exs. G-L. Rule 30(b) requires that "reasonable notice" of a deposition be given. RCFC 30(b). Yet plaintiffs waited until 10 days before the discovery deadline. They noticed depositions at the end of a week when plaintiffs knew that the lead attorney for the United States would be on vacation.

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They served the notices in these complex cases that concern events occurring over 10 years ago. They seek testimony from "the United States" about 16 different subject areas (many of which are poorly defined) and more than 70 different HUD projects. Such a belated request would not be reasonable under any circumstance. Plaintiffs' actions are even more egregious here, because the United States over two months repeatedly attempted to confer about the scheduling of any depositions that the plaintiffs sought to take. E.g., Ex. D ("please notify us promptly so that witnesses can be informed, necessary travel arranged, appropriate preparations made, and a mutually agreeable schedule established"). The Court should enter a protective order barring the depositions noticed by plaintiffs on August 20, 2007. This is the remedy that court's have employed in similar situations. For instance, in In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 230 (N.D. Ill. 2005), the court found that plaintiffs who manufactured a similar "emergency" at the end of the discovery period were not entitled to take further depositions. The court explained: [T]en business days notice would seem reasonable. But, just as negligence in the air does not exist, neither does reasonableness: the analysis is necessarily case-specific and fact intensive. What would be reasonable even in a late stage of a relatively simple case with few lawyers may take on a very different case where, as here, the case is exceedingly complex, the depositions are to occur virtually hours before the discovery cut-off, and it was obvious-or at least probable-that the schedules of the deponents and a number of lawyers would be unable to accommodate the belatedly filed notices. The plaintiffs were keenly aware of all of these facts and the competing demands imposed by the other discovery that had been percolating for some time. . . . Obviously, if the notices of deposition . . . were unreasonable, it necessarily follows that [the court deadline for discovery] would be violated, for the discovery would not then have been initiated in time to be completed by the . . . cut-off date.

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Id. at 328. Similarly, here, the plaintiffs failed to provide reasonable notices of the depositions that it now seeks to take. Accordingly, the discovery was not initiated in time to be completed by the Court-established deadline and should not be allowed. CONCLUSION For these reasons, the United States respectfully requests that plaintiffs' motion for an extension of the discovery period be denied and that the Court enter a protective order with respect to plaintiffs' recently-served deposition notices. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ David A. Harrington DAVID A. HARRINGTON Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0465 August 21, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on the 21th day of August 2007, a copy of "DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO EXTEND 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

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U.S. Department of Justice Civil Division
JED:BMS :DHarrington DJ No. 154-93-655 Tel: (202) 616-0465 Fax: (202) 307-0972
Washington, D.C. 20530

April 26, 2007
Via Facsimile & U.S. Mail

Harry J. Kelley, Esq. Nixon Peabody, LLP 401 Ninth Street, NW Suite 900 Washington, DC 20004-2129 (202) 585-8712
Re: Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.).

Dear Mr. Kelley: On March 27, 2007, I wrote you regarding the scope of the plaintiffs' discovery requests in the Anaheim Gardens case. In my letter, I explained that the scope of discovery is limited by the allegations in the operative complaint (i.e., the Plaintiffs' Fourth Amended Complaint) and that your discovery requests sought information about projects that were not mentioned in, plaintiffs' complaint. I further noted that the discovery sought in Algonquin Heights was appropriately limited to projects identified in the operative complaint in that action (i.e., the Plaintiffs' First Amended Complaint). I received your response on April 20, 2007. Your letter addresses four categories of projects in Anaheim Gardens and Algonquin Heights: (1) "'Dismissed' Anaheim Plaintiffs;" (2) "Additional Thetford Properties;" (3) "Additional Algonquin Heights Plaintiffs'.' from the First Amended Complaint; .and (4) "Additional Algonquin Heights Plaintiffs" from the Second Amended Complaint.1 We respectfully disagree with your position that the Court may entertain claims relating to projects that are not identified in the operative complaint in Anaheim Gardens. As such, no claims concerning "additional Thetford properties" are before the Court.

1 During our discussion yesterday, I informed you that your April 20, 2007 letter fails to address a number of projects that are included in the definition of"Subject Property" in Anaheim Gardens: Holiday Town Apartments #2; Carteret Court Apartments; Chowan Court Appartments; LaGrange Village Apartments; Long Drive Apartments #2; Mount Olive Court Apartments; and Stewart's Creek Apartments #2.

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-2We also respectfully disagree with your position that four additional projects were added to the Algonquin Heights case by the second amended complaint in that action. The plaintiffs' filed a motion for leave to file a second amended complaint on May 8, 1998. Although the motion was unopposed, the motion was never granted and the proposed second amended complaint was not filed. Indeed, as you note in your letter, before acting on the motion for leave to file "the second amended complaint, the Court first stayed and then dismissed the Algonquin Heig_~ complaint." By dismissing the case and entering judgment in favor of the United States, the Court implicitly denied the plaintiffs' motion for leave to amend the complaint. See, e._~., Goodman v. New Horizons Commtmi _ty Serv. Bd., 2006 WL 940646 at *3 (1 lth Cir. Apr. 12, 2006) ("the entry of a final judgment implicitly denies any pending motions"); Addington v. Farmers Elevator Mut. Ins. Co., 650 F.2d 633,666 (5th Cir. 1981) (holding that the entry of final judgment operated as a denial of plaintiff's motion for leave to amend the complaint). The operative complaint in Algonquin Heights is the first amended complaint, which was filed on September 19, 1997, and only as-applied taking claims of projects identified in the first amended complaint currently are before the Court. Putting aside these issues, there are several other outstanding matters concerning discovery that must be resolved. First, we have received no documents, responses to interrogatories, or responses to requests for admissions concerning the Deanswood Apartments project in Anaheim Gardens and the Cambridge Square North I, Cambridge Square of Fort Wayne I, Cambridge Square of Grand Rapids, Cambridge Square of Grand Rapids II~ Carriage House North, Carriage House of Elldaart, Carriage House of Mishawaka I, Carriage House of Mishawaka II, Carriage House of Muskegon, Carriage House South, Carriage House West I, Carriage HoUse West II, Carriage House West III, Carriage House West IV and Glenreed Apartments projects in Algonquin Heights. These projects are identified in the operative complaints and as-applied, regulatory taking claims concerning these projects are pending. If we have received no documents because a search of the plaintiffs' files failed.to identify responsive documents, please so inform us. On the other hand, if responsive documents Concerning these projects exist, please produce them as soon as possible. In addition, your answers to the United States' first set of interrogatories should be supplemented to include information about these projects.2 Second, we have received no discovery concerning the Briar Crest I, Briar Crest II, Briar Hills Townhouses and Church Park Apartments projects. Given your position that claims relating to these projects are pending before the Court, information concerning these projects should have been proffered in response to our discovery requests. Se__~e Def.'s First Set of Interrogatories at ii (defining "subject properties" as "properties owned by the plaintiffs that are the subject of claims asserted in this litigation"). Please supplement your discovery responses to provide information about these projects. 2 The United States' first set of requests for admission are deemed admitted as to these projects. RCFC 36(a). The plaintiffs should promptly request Court authorization if they wish to withdraw any such admissions. RCFC 36(b).

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-3Third, in your answers to various interrogatories, as well as in response to the United States' motions to compel, you stated that supplemental interrogatory answers would be served once the plaintiffs had received responses to discovery requests served on the United States. Documents have been produced on a rolling basis over the past three months, interrogatory answers and responses to request for admissions were served on April 16, 2007, and ripeness discovery is currently scheduled to close May 31, 2007. Accordingly, please supplement your interrogatory answers to provide complete, responsive answers to all of the United States' interrogatories per your prior representations. See RCFC 26(e). In order to enable deposition discovery to go forward in these cases, please produce documents and provide supplemental interrogatory answers as soon as possible, but in no event later than May 16, 2007. Further, given the various discovery issues currently outstanding (e._~., the United States' motions to compel, the parties disagreement about projects at issue, and the need for plaintiffs' to supplement their discovery responses), as well as the number of depositions that may be necessary, we propose seeking an additional 30 days for the completion of deposition discovery. Please contact me at your earliest convenience to discuss further the issues addressed in this letter. Very truly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch Terri L. Roman, Esq. Alice A. Peterson, Esq.

CC:

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U.S~ Department of Justice Civil Division JED:BMS:DHarrington DJ No. 154-93-655 & 154-97-582 Telephone: Facsimile: (202) 307-0277 (202) 307-0972

Washington, D. C. 20530

June 21, 2007

Via Facsimile & U.S. Mail Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Re:

Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582C (Fed. C1.).

Dear Mr. Kelly: I am writing to confirm our discussion yesterday about upcoming depositions in the Anaheim Gardens and Algonquin Heights cases. We agreed several weeks ago that deposition discovery would begin during the week of June 25, 2007. I had in fact proposed an earlier start date. On June 12, 2007, you provided a list of preferred locations for the depositions to be taken and, three days later, I served deposition notices for five depositions (Pine Crest Company, Glenview Gardens LP, Dolly Ann Apartments LP, Indian Head Manor LP, and Emory Grove LP) during the week of June 25, 2007. Based upon your statement that the Rule 30(b)(6) deponents for these plaintiffs will be unavailable for all but two days next week, I have reluctantly agreed to defer the depositions of Pine Crest, Glenview Gardens and Indian Head Manor, and move the deposition of Emory Grove from Friday, June 29, 2007, to Thursday, June 28, 2007. A revised deposition notice is enclosed. As you are well-aware~ the Anaheim Gardens and Algonquin Heights plaintiffs have asserted claims with respect to 71 low-income housing projects and the Government intends to take deposition discovery on ripeness with respect to about 50 of these projects. Given that discovery closes at the end of August 2007, we will need to complete about one deposition each business day from now to the end of August. This will require your cooperation and diligence, which you have assured me will be provided. Yesterday, I provided you a proposed schedule that completes theGovernment's deposition discovery by August 31, 2007. You indicated that you would discuss this proposed schedule with your clients so that any desired adjustments can be addressed promptly.

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-2Additionally, I explained that my understanding based upon the complaints, the plaintiffs' representations to the Court, and prior rulings by the Court, is that the plaintiffs no longer contend that Government administrative .delay. effected a taking. The plaintiffs' regulatory taldng claims are based upon the effect of the Preservation statutes as applied to their respective low, income housing projects. During our discussion, you stated that you would confirm in writing that this understanding is correct (or incorrect) by the end of this week. It is essential that we. promptly obtain a confirmation of plaintiffs' position concerning administrative delays as this has the potential to affect significantly the time required to conduct the upcoming depositions in these matters. ° I look forward to hearing back from you. Very truly yours,

David A. Harrington Trial Attorney Commercia! Litigation Branch

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IN THE uNITED STATES COURT OF FEDERAL CLAIMS ALGONQUIN HEIGHTS, et al., Plaintiffsl.
go

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ).

No. 97-582C (Judge Robert H. Hodges, Jr.)

RULE 30(b)(6) NOTICE OF DEPOSITION Please take notice that, pursuant to Rule 30(b)(6) of the Rules of the Court of Federal Claims, defendant, the United States, will take the deposition of plaintiff, Emory Grove LP d/b/a Willow Creek Apartments, upon oral examination before an officer authorized by law to administer oaths, commencing at 1100 L Street, N.W., Washington, D.C., at 9:30 a.m., on June 28, 2007, and continuing from day to day until completed. P-ur-suant to Rule 30(b)(6), you shall designate the most knowledgeable person or persons to testify upon its behalf as to the following subject matter: 1. All of your interactions with HUD pursuant to, or in accordance with, the Emergency Low-Income Housing Preservation Act ("ELIHPA"), including, but not limited to, the filing of notices of intent with HUD, the submission of preservation appraisals, the determination of preservation values, the submission of plans of action to HUD, and HUD's response tosubmitted plans of action submitted by plaintiff. 2. All of your interactions with HUD pursuant to, or in accordance with, the LowIncome Housing Preservation and Resident Homeownership Act ("LIHPRHA"),

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including, but not limited to, the filing of notices of intent with HUD, the submission of preservation appraisals, the determination of preservation values, the submission of plans of action to HUD, .and HUD's response to submitted plans of action submitted by plaintiff. All actions taken by you to pursue and exhaust the administrative process established by ELIHPA and LIHPRHA (dollectively, the "Preservation Statutes"). The outcdme of the administrative process established by the Preservation Statutes; e.g., sale to a qualified purchaser, execution of a use agreement, or prepayment. The actions taken by you, or performed on your behalf, to consider, assess or otherwise evaluate the options available under the Preservation Statutes.
o

Your communications with HUD concerning or relating to the possibility of prepaying the Government-insured mortgage on Willow Creek Apartments. The bases for your contention that it was futile to apply for HUD permission to prepay the mortgage on Willow Creek Apartments pursuant to the Preservation Statutes. The date on which you would have been eligible to prepay the Governmentinsured mortgage on Willow Creek Apartments but for the Preservation. Statutes. PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

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Mo

Assistant Director

.DAVID A. 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
June 2!, 2007 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 7_i ~ day of June 2007, I caused to be delivered by U.S. mail theforegoing Rule 30(b)(6) Notice of Deposition to:

Harry J. Kelly Nixon Peabody, LLP 410 Ninth Street, N.W., Suite 900 Washington, D.C. 20004

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable .law. If the reader of this transmission is not the intended recipient or the employee or agent responsible for delivering the transmission to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or it'~ contents is strictly prohibited. If you have received this transmission in error, please notify us by telephoning and return the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. Washington, D.C. 20530 Fax No. Voice No. (202) 616-0465 (202) 307-0277

SENT BY: TO: DATE:

David A. Harrington Harry Kelly, Esq. Fax. No.: (202) 585-8080 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Anaheim Gardens, et al. v. United States, No. 93-655 (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582 (Fed. C1.).

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected fi'om disclosure under applicable,law. If the reader of this transmission is not the intended recipient or the employee or agent responsible for delivering the transmission to ~he intended recipient, you ar.e hereby notified that any dissemination, distribution, copying or use of this transmission or it's contents is strictly prohibited. If you hav~ received this transmission in error, please notify us by telephoning and return the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L.Street, N.W. Washington, D.C. 20530 Fax No. Voice No. ¯

(202) 616-0465 (202) 307-0277

SENT BY: TO: DATE:

David A. Harrington Alice A. Peterson, Esq. Fax. No.: (617) 565-7337 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Algonquin Heights, et al. v. United States, No. 97-582 (Fed. C1.).

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IMPORTANT: This facsimile is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If the reader of this transmission is not the intended recipient or the emplo)ee or agent responsible for delivering the transmission to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this transmission or it's contents is strictly prohibited. If you have received this transmission in error,please notify us by telephoning and remm the original transmission to us at the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. Washington, D.C. 20530 Fax No. Voice No. (202) 616-0465 (202) 307-0277

SENT BY: TO: DATE.:

David A. Harrington Terri L. Roman, Esq. Fax~ No.: (202) 708-3351 June 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7 NOTES: Anaheim Gardens, et al. v. United States, No. 93-655 (Fed. C1.).

Case 1:93-cv-00655-MMS Document 163-3 Filed 08/21/2007 *******~** ~COMM. JOURNAL= ~******~*~*~**~** DATE JUN'21=200T ***~* TIME 12:39
MODE = MEMORY TRANSMISSION FILE N0.=214 STN NO. COMM. ONE-TOUCH/ STATION NAME/TEL NO. ABBR NO. PAGES START=JUN-21 12:37

Page 10 of 10

END=JUN-21 12:39

DURATION

001

OK

~

95858080

OCT/OCT 00:0~:03

-DOJ COMM LIT

202 30? 0972- *********

IMPORTANT: This facsimile is intendgl only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If" the reader of this transmission is not the intended rccipbnt or the emp!oy~ or agent responsible for delivering the tmnsmlssion to the intended recipient, yea ~e hereby notified that any dissemination, distribution, copying or use of this transmission or it'~ contents is strictly prohibited. If you have received this transmission in error, please notify us _by_telephoning and remm the original transmission to us ac the address given below.

FROM:

Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W, Washington, D.C. 20530

Fax No, (202) 616-0465 Voice No. (202) 307-0277
SENT BY: David A. Harrington

TO:
DATE:

Harry Kelly, Esq. Fax. No.: (202) 585-8080
Jun~ 21, 2007

NUMBER OF PAGES SENT (INCLUDING COVER PAGE): 7

NOTES:

Anaheim Gardens, et at v. United Stales, No. 93-655 (Fed, C1.); Algonquin Heights, et al. v. United State~, No. 97-582 (Fed. CI.).

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U.S. Department of Justice Civil Division JED :BMS :DHarrington DJNo. 154-93-655 & 154-97-582 Telephone: Facsimile:
(202) 307-0277 (202) 307-0972

Washington, D.C. 20530

June 26, 2007

Via Facsimile & U.S. Mail Harry J. Kelly, Esq. Nixon Peabody LLP ¯ 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004 Anaheim Gardens; et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et aL v. United States, No. 97-582C (Fed. C1.). Dear Mr. Kelly: Having reviewed the proposed schedule for depositions recently received from Ms. Ziarno, I have a number of concerns. Rather than detailing those concerns, I am simply enclosing a revised schedule with this letter. Consistent with your proposal, the. enclosed revision does not schedule depositions on July 5 or 6, 2007, uses your suggested dates for the many Cambridge Square/Carriage House plaintiffs, and schedules no depositions during the week of August 6, 2007 to accommodate your vacation plans. In addition, the United States will talce depositions in the cities requested in your previous correspondence. I trust that this meets with your approval. Given that many open days exist in July and August and that substantial resources are available to a national firm such as Nixon Peabody, we do not agree to Ms. Ziarno's proposal to ¯ extend the discovery deadline, which has already been extended twice. If taldng depositions on open dates are not feasible, however, we are willing to consider double tracking depositions to enable you to complete deposition discovery before August 31, 2007. Very truly yours,

David A. Trial Attorney Commercial Litigation Branch Enclosure

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Ripeness Deposition Schedule
PLAINTIFF~

PROJECT NAME

LOCATION & DEPOSITION DATE July 30, 2007 Los Angeles, CA

1. Anaheim Gardens, LP c/o L.S. Ames P.O. Box 515 25332 Narborme Avenue, Suite 200 Lomita, CA 90717 2. B-L Associates, LP c/o Roger W. Stem 1560 Beacon Street Brookline, MA 02146 6. C-W Associates, LP c/o Roger W. Stem 1560 Beacon Street Brookline, MA 02146 7. Glenview Gardens, LP c/o Mid-City Financial Corporation 4340 East-West Highway, Suite 300 Bethesda, MD 20814 9. Indian Head Manor LP I c/o Mid-City Financial.Corporation 4340 East-West Highway, Suite 300 Bethesda, MD 20814 10. Norman M. I~onick & Louis Dulein d/b/a Halawa View Apartments, GP c/o Norman Kr0nick Halawa View Apartments 3605 Manamana Place Honolulu, HI 96822 19. Thetford Properties III, LP c/o Richard A. Urban P.O. Box 168 Richmond, VA 23201 20 Thetford Properties III, LP c/o Richard A. Urban P.O. Box 168 Richmond, VA 23201

Anaheim Gardens

1550 Beacon Plaza

July 18, 2007 Boston, MA

100 Centre Plaza

July 17, 2007 Boston, MA

Glenview Gardens Apartments

July 11, 2007 Washington, DC

Indian Head Manor Apts

July 10, 2007 Washington, DC

Halawa View Apts

July 30-31, 2007 Los Angeles, CA

River Falls Apts.

July 24-25, 2007 " Washington, DC

Market North Apts II

July 24-25, 2007 Washington, DC

The Anaheim Gardens plaintiffs are plaintiffs 1 to 28. The Algonquin Heights plaintiffs are plaintiffs 29 to 71.

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21. Thefford Properties III, LP c/o Richard A. Urban P.O. Box 168 Richmond, VA 23201 22. Thetford Properties IV, LP c/o Richard A. Urban P.O Box 168 Richmond, VA 23201 23. Thetford Properties IV, LP c/o Richard A. Urban P.O Box 168 Richmond, VA 23201 24. Thetford Properties IV, LP c/o Richard A. Urban P.O Box 168 Richmond, VA 23201 25. Thetford Properties IV, LP c/o Richard A. Urban P.O Box 168 Richmond, VA 23201 29. Algonquin Heights Associates, LP 55 Summer Street . Boston, MA 02110 31. Brookside Manor Associates LP c/o Mid-City Financial Corp. 4340 East-West Highway, Suite 300 Bethesda, MD 20814 32. Buckman Gardens LP " c/o John G. Gosnell 8130 Boone Blvd. Vienna; VA 22180. 33. Cambridge Square North Associates, LP PO Box 40177 Indianapolis, IN 46240 34. Cambridge Square. of Ft. Wayne Associates I, LP PO Box 40177 Indianapolis, IN 46240 35. Cambridge Square of Grand Rapids Associates I, LP PO Box 40177 Indianapolis, IN 46240

Washington Street Apartments d/b/a Deanswood Apts.

July 24-25, 2007 Washington, DC

Southgate Apts.

July 26-27,'2007 Washington, DC

Jefferson Court Apts.

July 26-27, 2007 Washington, DC

Glendale Court Apts.

July 26-27, 2007 Washington, DC

Market North Apts. I

July 26-27, 2007 Washington, DC
July 17,.2007 Boston, MA

Algonquin Heights

Brookside Manor Apartments

July 19, 2007 Washington, DC

Buckman Road Garden Apartments

August 24;2007 Washington, DC August 1, 2007 Washington, DC

Cambridge Square North I

Cambridge Square of Fort Wayne I

August 1, 2007 Washington, DC

Cambridge Square of Grand Rapids

August 2, 2007 Washington, DC

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36. Cambridge Square of Grand Rapids Assoc.iates II, LP PO Box 40177 Indianapolis, IN 46240 37. Carriage House North Associates, LP PO Box 40177 Indianapolis, IN 46240 " 38. Carriage House of Elldaart Associates, LP PO Box 40177 Indianapolis, IN 46240 39. Carriage House of Mishawaka Associates I, LP PO Box 40177 Indianapolis, IN 46240 40. Carriage House of Mishawaka Associates II, LP PO Box 40177 Indianapolis, IN 46240 41. Carriage House of Muskegon Assocs, LP PO Box 40177 Indianapolis, IN 46240 42. Carriage House South Associates, LP PO Box 40177 Indianapolis, 1N 46240 43. Carriage House West I Associates, LP PO Box 40177 ¯ Indianapolis, IN 46240 44. Carriage House West II Associates, LP PO Box 40177 Indianapolis, IN 46240 45. Carriage House West IIl Associates, LP PO Box 40177 Indianapolis, IN 46240 46. Carriage House West IV Associates, LP PO Box 40177 Indianapolis, IN 46240

Cambridge Square of Grand Rapids II

August 2, 2007 'Washington, DC

Carriage House North

August 13, 2007 Washington, DC

.Carriage House of Elkhart

August 13, 2007 Washington, DC

Carriage House of Mishawaka I

August 14, 2007 Washington, DC

Carriage House of Mishawaka II

August 14, 2007 Washington, DC

Carriage House of Muskegon

August 15, 2007 Washington, DC

Carriage House South

August 15, 2007 Washington, DC

Carriage House West I

August 16, 2007 Washington, DC

Carriage House West II

August 16, 2007 Washington, DC

Carriage House West III

August 17, 2007 Washington, DC

Carriage House West. IV

August 17, 2007 Washington, DC

3

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47. Chauncy House Company c/o State Street Dev. Mgmt. Corp. 488 Commonwealth Avenue ¯ Boston, MA 02215 49. Country Towne Apartments . Partnership c/o Littman & Pakenham Box 6013 North Brunswick, NJ 08902 50. Dolly Ann Apartments LP c/o Mid-City Financial Corporation 4340 East-West Highway, Suite 300 Bethesda, MD 20814 51. Emory Grove LP c/o NHP 8065 Leesburg Pike, suite 400 Vienna, VA 22182-2780 Attn: Roberta Ujakovich 52. First Landmark Associates LP c/o Mid-City Financial Corporation 4340 East-West Highway, Suite 300 Bethesda~ MD 20814 53. Forest Glenn Ltd. Div. Housing Ass'n c/o Joel L. Altman Altman Development Corp. 2201 Corporate Blvd., N.W., Suite 200 Boca Raton, FL 33433 54. Forest Glenn Ltd. Div. Housing Ass'n c/o Joel L. Altman Airman Development Corp. 2201 Corporate Blvd., N.W., Suite 200 Boca Raton, FL 33433 56. Garrison Forest Associates c/o Mount Royal Management Co. 1233 West Mount Royal Ave. Baltimore, MD 21217

Chauncy House

July 13, 2007 Washington, DC

Country Towne Apartments

August 23, 2007 NYC

Dolly Ann Apartments

June 27, 2007 Wa;hington, DC

Willow Creek Apartments

June 28, 2007 Washington, DC

Landmark Apartments

July 23, 2007 Washington, DC

Forest Glenn Apartments (Phase I)

¯.August 29, 2007 Washington, DC

Forest Glenn Apartments (Phases II & II!)

August 29, 2007 Washington, DC

Garrison Forest Apartments (Section I)

August 27, 2007 Washington, DC

4

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57. Garrison Forest Associates c/o Mount Royal Management Co. 1233 West Mount Royal Ave. Baltimore, MD 21217 58. Glenarden LP c/o Daniel M. Lyons 13685 Rivioli Drive Palm Beach Garden, FL 33410 59. Glenarden LP c/o Daniel M. Lyons 13685 Rivioli Drive Palm Beach Garden, FL 33410 60. Jodani Associates, LP c/o Alpert & Alpert Development Ltd. One Parker Plaza Fort Lee, NJ 07024 " 61. Kimberly Associates LP c/o NHP 8065 Leesburg Pike, Suite400 ¯ Vienna, VA.22182-2783 Attn: Robert Ujakovich 63. Leader House Associates & Leader Housing Co. c/o Starrett Corporation 909 Third Avenue New York, NY 10022 64. New Amsterdam Associates & New Amsterdam Houses, Inc. c/o Starrett Corporation 909 Third Avenue . New York, NY 10022 65. Pine Crest Company c/o State Street Dev. Mgmt. Corp. 488 Commonwealth Avenue Boston, MA 02215 67. Suburbia Associates LP c/o Steven G. Dakes Brown, Dakes, Wannall 3025 Hamaker Court, Suite 401 Fairfax, VA 22031-2226

Garrison Forest Apartments (Section II)

August 27, 2007 Washington, DC

Glenarden Woods Apartments

August 30, 2007 Washington, DC

Glenreed Apartments

August 30, 2007 Washington, DC

Jodani Associates

August 21, 2007 New York, NY

¯ Cherry Branch Townhomes

July 20, 2007 Washington, DC

Leader House Apartments

August 22, 2007 New York, NY

New Amsterdam Apartments

August 22, 2007 New York, NY

Pine Crest Apartments

July 13, 2007 Washington, DC

Suburbia Fairfax Apartments

August 31, 2007 Washington, DC

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68. Suehar Associates, LP c/o Alpert & Alpert Development Ltd. One Parker Plaza Fort Lee, NJ 07024 70. Town & Country Apts. and Townhouses c/o Mount Royal Management Company 1223 West Mount Royal Avenue Baltimore, MD 21217 71. Town & Country Apts. and Townhouses c/o Mount Royal Management Co. 1223 West Mount Royal Avenue Baltimore, MD 21217

Suehar Associates

August 2!, 2007 New York, NY

Town & Country Apartments and Townhouses (Section I)

,,.August 28, 2007 Washington, DC

Town& Country Apa.rtments and Townhouses (Section II)

August28, 2007 Washington, DC

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U.S. Department of Justice Civil Division

JED:BMS :DHarrington DJ No. 154-93-655 & 154-97-582

Telephone: Facsimile:

(202) 616-0465 (202) 307-0972

Washington, D.C. 20530

August 6, 2007 Via Electronic Mail and U.S. Mail

Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Anaheim Gardens, et al. v. United States, No. 93-655C (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97-582C (Fed. C1.).

Dear Mr. Kelly: Please find enclosed deposition notices for ripeness depositions during the weeks of August 20 and August 27, 2007. The depositions are noticed in the respective cities suggested in your earlier correspondence. Several depositions that were originally noticed in July have been rescheduled during these two weeks in order to complete deposition discovery by the August 31, 2007 deadline. As you are aware, the United States consulted with you about preferred deposition locations and times, and worked to facilitate a mutually acceptable schedule for needed depositions. The vast majority of plaintiffs' requests were accommodated. To date, we have received no similar inquiries about depositions of Government witnesses. Less than four weeks remain before the close of discovery. If plaintiffs intend to take any ripeness depositions, please notify us promptly so that witnesses can be informed, necessary travel arranged, appropriate preparations made, and a mutually agreeable schedule established. Very truly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch Enclosures

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U.S. Department of Justice Civil Division
JED:BMS:DHarrington DJ No. 154-93-655 & 154-97-582

Telephone: Facsimile:

(202) 616-0465 (202) 307-0972

Washington, D.C. 20530

August 15, 2007 Via Electronic Mail and U.S. Mail

Harry J. Kelly, Esq. Nixon Peabody LLP 401 Ninth St., N.W. Suite 900 Washington, D.C. 20004
Anaheim Gardens, et al. v, United States, No. 93-655C (Fed. C1.); Algonquin Heights, et al. v. United States, No. 97:582C (Fed. C1.).

Dear Mr. Kelly: Please find enclosed revised deposition notices for the remaining ripeness depositions in these actions. These notices implement a revised deposition schedule, which was requested by your colleague, Alycia Ziarno, and is being adopted to accommodate the preferences of you and your clients. The depositions are being taken in the respective cities that you suggested in earlier correspondence. As you are well aware, the period for ripeness discovery has been open for over a year and is rapidly drawing to a close. In my August 6, 2007 letter, I explained that we hadreceived no inquiries from plaintiffs about dePOsitions of Government witnesses and urged'that you arrange any such depositions promptly "so that witnesses can be informed, necessary travel arranged, appropriate preparations made, and a mutually agreeable schedule established." Letter from David A. Harringt0n to Harry J. Kelly at 1 (Aug. 6, 2007). Over one week has passed, during which time the United. States has taken eight ripeness depositions, and still plaintiffs have neither inquired about the availability of witnesses nor served deposition notices. You have in the past suggested that plaintiffs were planning to take ripeness depositions. If that is still the ¯ case, your delay in serving notice is prejudicial and reflecis a lack of professional courtesy that stands in stark contrast to our own ongoing efforts to accommodate the schedules and preferences of you and your clients. If plaintiffs intend to take any ripeness .depositions, please hand serve deposition notices immediately, but in no event later than 2:00 p.m., Friday, August 17, 2007, so that we can determine whether we can accommodate your requests or should seek a protective order. I note that Ms. Ziarno recently inquired about an extension of the current deadline for ripeness discovery. The Court has twice extended the period for ripeness discovery, which has

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-2given the parties an additional eight months to conduct discovery. I have repeatedly emphasized that the United States would complete ripeness discovery by the August 31, 2007 deadline and that plaintiffs would be expected to. do the same. I am aware of no reasons that a further extension of the discovery deadline is warranted. Very truly yours,

David A. Harrington Trial Attorney Commercial Litigation Branch Enclosures

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Harrington, David (CIV)
From: Sent: Harrington, David (CIV) Friday, August 17, 2007 9:29 PM

To: '[email protected]' Cc: '[email protected]' Subject: Anaheim Gardens/Algonquin Heights Alycia: As you are aware, in my August 6, 2007 letter, I urged plaintiffs to serve notice of any ripeness depositions promply to enable the United States to notify witnesses, adjust schedules and workout necessary logistics. Receiving no response, in a letter sent to both you and Mr. Kelly on August 15, 2007, I explained that plaintiffs should hand serve notices for any ripeness depositions as soon as possible, but in any event no later than 2:00 p.m. on August 17, 2007, in order to meet the August 31, 2007 discovery deadline. I am writing to confirm our conversation earlier today that plaintiffs elected to serve no deposition notices in either the Anaheim Gardens v. United States, No. 93-655 (Fed. Cl.), or Algonquin Heights v. United States, No. 97582 (Fed. Cl.). David David A. Harrington Trial Attorney Civil Division U.S. Depatment of Justice 1100 L Street, N.W.. \Vashmgton, D.C. 20530 (202)616-0465

8/21/2007

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