Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:00-cv-00705-FMA

Document 169

Filed 10/31/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE BOEING COMPANY, Plaintiff, No. 00-705 C v. Judge Francis M. Allegra THE UNITED STATES, Defendant. DEFENDANT'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF DISCOVERY Defendant, the United States, moves pursuant to Rules 6(b) and 6.1, Rules of the Court of Federal Claims, for an enlargement of discovery. Specifically, the Government requests that the period of fact discovery during the accounting phase be enlarged thirty (30) days from October 31, 2006, the date now set for the completion of fact discovery, to and including November 30, 2006. The Government also requests that the other currently scheduled discovery dates be extended, as set forth below, to the first business day that is thirty (30) days after the currently scheduled date. This is the Government's first motion for enlargement of discovery during the accounting phase of this case. The undersigned counsel for the Government contacted Keith D. Nowak, counsel for Boeing, on October 26, 2006, regarding the requested enlargement, and in the late afternoon of October 30, 2006, Mr. Nowak advised the undersigned that Boeing does not oppose the requested enlargement. This is a patent suit brought pursuant to 28 U.S.C. § 1498(a) by The Boeing Company. Boeing's allegations pertain to the manufacture of certain parts used in the External Tank of the Space Shuttle. This case is now in the discovery portion of the accounting phase. On August 30, 2006, the Court granted Boeing's unopposed motion for an enlargement of the accounting phase discovery schedule and established the following:

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Case 1:00-cv-00705-FMA

Document 169

Filed 10/31/2006

Page 2 of 3

(i) (ii)

On or before October 31, 2006, all fact discovery shall be completed. On or before December 15, 2006, each party shall serve on the other the disclosure of expert testimony required by RCFC 26(a)(2). On or before January 30, 2007, all expert discovery shall be completed. On or before February 15, 2007, the parties shall file a joint status report indicating how this case should proceed.

(iii) (iv)

Boeing has recently informed the Government that Boeing may call a previously unidentified fact witness to testify at trial. Boeing's counsel has indicated that this person is a retired Boeing attorney and may testify regarding Boeing's negotiations concerning licenses for the patent at issue in this case. The fact discovery period remaining after Boeing's identification of this new trial witness has not been an adequate amount of time to prepare for and conduct this person's deposition. This is, in part, because the majority of the last two full weeks of October 2006 have been devoted to Boeing's depositions (in three different cities) of NASA employees and of Lockheed Martin. Furthermore, the earliest date that Boeing's counsel has indicated that the person may be available for deposition is in mid-November, which is after the currently scheduled close of fact discovery. Therefore, an enlargement of the fact discovery period is needed in order to prepare for and complete the deposition and to allow adequate time for the preparation of the transcript. Because the information obtained during this deposition may effect the expert disclosures, it also is necessary to extend the expert discovery dates.

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Case 1:00-cv-00705-FMA

Document 169

Filed 10/31/2006

Page 3 of 3

Defendant requests that the Court modify the discovery schedule as follows: (i) (ii) On or before November 30, 2006, all fact discovery shall be completed. On or before January 16, 2007, each party shall serve on the other the disclosure of expert testimony required by RCFC 26(a)(2). (iii) (iv) On or before March 1, 2007, all expert discovery shall be completed. On or before March 19, 2007, the parties shall file a joint status report indicating how this case should proceed. For the above reasons, the Government respectfully requests that this motion be granted, and the discovery schedule be enlarged as set forth above. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director

October 31, 2006

OF COUNSEL: GARY L. HAUSKEN Assistant Director Department of Justice

s/ Ken B. Barrett KEN B. BARRETT Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 307-0343 Facsimile: (202) 307-0345 E-mail: [email protected] Attorneys for the United States

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