Free Joint Status Report - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

Document 102

Filed 08/17/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff v. THE UNITED STATES, Defendant JOINT STATUS REPORT OF AUGUST 18, 2006 TO THE HONORABLE UNITED STATES COURT OF FEDERAL CLAIMS: Pursuant to the Court's order, the parties file this Joint Status Report. STATUS OF SETTLEMENT Settlement is not progressing. The parties cannot agree, among other things, on a methodology for estimating diversions, the types of claims before the Court, or the consequences of the alleged discovery failures and misrepresentations by the Government. STATUS OF DISCOVERY In accordance with the Court's order, as amended, the deposition of Mr. William Bandy, Plaintiff's former president, was taken on August 4, 2006. Defendant crossexamined Mr. Bandy at length. In accordance with the Court's order, Plaintiff responded to Defendant's interrogatory 9 on August 4, 2006 based on the data available. Plaintiff has filed a motion to compel and for sanctions, which is being heard in Dallas, Texas on August 22, 2006. Briefing was completed on August 16, 2006.

CASE NO: 03-CV-289 Judge Allegra

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Case 1:03-cv-00289-FMA

Document 102

Filed 08/17/2006

Page 2 of 3

Until the Court rules on Plaintiff's motion, the parties are not in a position to advise the Court on how they believe the case should proceed. PLAINTIFF'S POSITION WITH RESPECT TO OPEN ISSUES: Plaintiff's general position is that the Government has repeatedly and seriously failed to meet its discovery obligations under Bankruptcy Rules of Procedure 7026 and 7027 and CFCR 26 and 37. Plaintiff further contends that the Government failed to comply with paragraph (i) of the Court's order requiring it to produce all remaining data concerning sales transactions pertinent to this case and respond to plaintiff's interrogatories 4, 5, 6, 7, 19 and 20 by July 5, 2006 and that these failures are factors relevant to the upcoming sanctions hearing. Plaintiff further contends that the Government's affidavit responses required by the order of April 26, 2006, as amended, failed to provide the information required by the order and that the information baseline contemplated by the Court has been frustrated. DEFENDANT'S POSITION WITH RESPECT TO OPEN ISSUES: By agreement, defendant is in the process of scanning onto CDs, for production to plaintiff, the contents of approximately 200 boxes of documents that were obtained from the MTFs since June 2006. As of August 14, 2006, 13 boxes of documents had been scanned, 144 were at vendors being scanned, and the remaining boxes were awaiting the availability of a vendor. Defendant requests the Court to schedule this case for trial in mid-2007. As plaintiff notes, one witness has already testified de bene esse.

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Case 1:03-cv-00289-FMA

Document 102

Filed 08/17/2006

Page 3 of 3

Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/Frank L. Broyles FRANK L. BROYLES State Bar No. 03230500 GOINS, UNDERKOFLER, CRAWFORD & LANGDON, LLP 1201 Elm Street 4800 Renaissance Tower Dallas, Texas 75270 (214) 969-5454 Attorneys for Plaintiff

DAVID M. COHEN Director

s/Kyle Chadwick KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 305-7644 Attorneys for Defendant

CERTIFICATE OF SERVICE No service needed.

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