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

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NO. 07-165C (Judge Merow) IN THE UNITED STATES COURT OF FEDERAL CLAIMS HERNANDEZ, KROONE AND ASSOCIATES, INC., Plaintiff, v. UNITED STATES OF AMERICA, Defendant. DEFENDANT'S MOTION TO COMPEL PRODUCTION OF RESPONSES TO DEFENDANT'S INTERROGATORIES AND DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director MARK A. MELNICK Assistant Director MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division, Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 March 26, 2008 Attorneys for Defendant

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TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii DEFENDANT'S MOTION TO COMPEL PRODUCTION OF RESPONSES TO DEFENDANT'S INTERROGATORIES AND DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. II. HKA's Objections And Responses To Defendant's Interrogatories Are Improper 6 The Court Should Grant Our Motion For An Enlargement Of Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES CASES AAB Joint Venture v. United States, 74 Fed. Cl. 367 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S. Ct. 1955 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5 Chesler v. United States, 118 F.R.D. 1 (D.D.C. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Continental Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682 (D. Kan. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221 (10th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Medina Const., Ltd. v. United States, 43 Fed. Cl. 537 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14 RLI Ins. Co. v. B & W Contractors, Inc., 2007 WL 474949 (N.D. Miss. Feb. 9, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Sabel v. Mead Johnson and Co., 110 F.R.D. 553 (D. Mass. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HERNANDEZ, KROONE AND ASSOCIATES, INC. ) ) ) Plaintiff, ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

NO. 07-165C (Judge Merow)

DEFENDANT'S MOTION TO COMPEL PRODUCTION OF RESPONSES TO DEFENDANT'S INTERROGATORIES AND DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME Pursuant to Rule 37 of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests the Court to order plaintiff, Hernandez, Kroone and Associates, Inc. ("HKA"), to provide proper and complete responses to certain interrogatories served upon plaintiff on December 12, 2007. As explained in detail below, HKA's objections in response to those interrogatories are not valid and are, in many cases, without any basis in the RCFC. The United States certifies that it has conferred in good faith with plaintiff in an effort to secure HKA's responses without court action. In addition, we hereby respectfully move for an enlargement of time of various durations, as explained below, with respect to each item on the Court's September 6, 2007 scheduling order. FACTUAL BACKGROUND On November 30, 2007, we moved for an enlargement of time of 120 days in order to complete non-expert discovery. In that motion, we demonstrated that additional time was necessary to "develop fully the facts of this case, including, but not limited to, propounding written discovery requests, reviewing produced documents, taking and defending the necessary depositions in California, and determining whether to retain one or more expert witnesses." In

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particular, we explained that "additional time for discovery is necessary due to plaintiff's vague allegations in this case" and that once "defendant is able to ascertain the factual bases for plaintiff's conclusory legal claims, defendant will be in a position to more narrowly tailor the remainder of its discovery requests and strategy." In that regard, we pointed out that, "given the absence of any facts in plaintiff's complaint, it arguably fails to state a claim under Rule 12(b)(6).1/ However, "in the interest of efficiency," we elected to complete discovery prior to pursuing any such dispositive motions. On December 21, 2007, the Court granted our motion for an enlargement, extending the close of non-expert discovery to May 8, 2008. With respect to the remaining deadlines contained in the Court's September 6, 2007 scheduling order, the Court ordered that any additional enlargement requests be made by separate motion. On December 12, 2007, defendant served upon plaintiff its first set of interrogatories and requests for production of documents. Although HKA's responses to those discovery requests were due within 30 days, HKA asked, on or about January 11, 2008, for an additional two weeks (to January 25, 2008) to respond to our discovery requests. We agreed to that request. On January 24, 2008, we provided HKA with the Government's contract file on seven (7) CD-ROMs. Those CD-ROMs replaced others that had been provided to HKA previously, on December 12, 2007, but that had been missing some documents and that lacked Bates-numbers.

See Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S. Ct. 1955, 1968-70 (2007) ("a wholly conclusory statement of claim" cannot "survive a motion to dismiss" simply "whenever the pleadings left open the possibility that a plaintiff might later establish some `set of [undisclosed] facts' to support recovery"). -2-

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HKA responded to our first set of interrogatories on January 25, 2008.2/ See Exhibit 1.3/ In general, plaintiff responded to each interrogatory by stating one or more baseless objections and then providing limited information in response to the interrogatory "[s]ubject to the conditions and objections as set forth . . ., and without waiving said objections." Thus, by the terms of HKA's responses, the information provided does not purport to represent a complete and accurate response to each interrogatory. Instead, HKA has provided some information related to the interrogatory, but apparently only on a voluntary basis. On February 14, 2008, we wrote HKA to explain "that a number of HKA's objections and responses" to our interrogatories were "either misplaced, nonresponsive, or insufficient." See Exhibit 2. In particular, we raised concerns with respect to HKA's responses to Interrogatory Nos. 2, 4, 5, 6, 7, 9, and 12,4/ and informed HKA that its responses did "nothing to remedy the deficiencies in its Amended Complaint that were identified in our [motion for enlargement]." On February 22, 2008, HKA responded to the issues raised in our February 14, 2008 letter, and provided Supplemental Responses to our interrogatories. See Exhibit 3. In that letter, HKA indicated that if we "still ha[d] concerns regarding HKA's [interrogatory] responses," HKA's counsel, Ms. Milene C. Apanian, was "available to further meet and confer by phone."

2

Although HKA's responses were served on the Government on January 25, 2008, we first received them on January 31, 2008, via facsimile.
3

References to "Interrogatory No. __" herein are to the interrogatories propounded as part of the Government's first set of interrogatories.
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Our letter mistakenly referenced Interrogatory No. 1, although it clearly addressed Interrogatory No. 2. -3-

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On February 25, 2008, undersigned counsel for the United States contacted Ms. Apanian via phone to discuss our view that selected HKA responses to our interrogatories remained deficient and failed to comply with this Court's rules. During that conversation, we were unable to reach an agreement regarding HKA's obligation to provide further information. Following that conversation, however, Ms. Apanian sent an e-mail to undersigned counsel in which she asked "that if the US still has concerns regarding HKA's responses, that the US clearly and in writing identify those remaining concerns, and to allow HKA an opportunity to respond." See Exhibit 4. Indeed, Ms. Apanian went so far as to say that "[i]f the US files a motion against HKA without further efforts to resolve the outstanding issues which the government thinks may still exist, it will do so in violation of the statutory requirements to engage in good faith efforts to resolve disputes prior to filing motions." Id. On or about March 5, 2008, we received replacement CD-ROMs from HKA, more than one month after we concluded our document production to HKA. See Exhibit 5. Indeed, the documents that HKA initially provided to us omitted Bates-numbers, the very deficiency about which HKA had complained to us with respect to our document production. As noted above, we provided HKA with replaced documents precisely because we concurred with HKA that unnumbered documents would make document review and depositions unduly cumbersome. On March 12, 2008, in a final attempt to avoid involving the Court in this discovery dispute, we complied with HKA's request, per Ms. Apanian's aforementioned February 25, 2008 e-mail, to "clearly and in writing identify . . . remaining concerns, and to allow HKA an opportunity to respond." See Exhibit 4. Indeed, we addressed, in a detailed letter and table, not only HKA's general objections, but also HKA's specific interrogatory responses and explained

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why they remained deficient and nonresponsive. See Exhibit 6. The table also contained a discussion of the legal principles upon which we base the instant motion. Finally, in our March 12, 2008 letter to HKA, we also asked whether it would oppose a motion for enlargement of time of three months to each item on the current schedule. On March 18, 2008, HKA declined to respond further, "find[ing] it unnecessary to waste time correcting [the Government's] misstatements." See Exhibit 7. Instead, HKA elected "only [to] address [the] request for an enlargement of time." Id. Rather than consenting to our proposed three month enlargement to each item on the schedule, HKA instead proposed to enlarge one deadline by a month, another by three months, and yet two others by nearly six months. Id. Despite HKA's March 18 communication that it declined to engage in any further discussion about our objections to its responses, on March 25, 2008, via e-mail, HKA informed us that we should await some further communication about the matter that it would provide by April 4, 2008. See Exhibit 8. HKA, however, did not retract its previous refusal to respond further to our discovery objections, and gave us no reason to believe that HKA intends to resolve our objections. Id. Although counsel for HKA complained that we served our March 12, 2008 letter while she was out of the office, see id., we accounted for her absence in requesting a response to our letter, see Exhibit 9, and nothing in her first response to it indicated that HKA needed additional time for a second response. As explained in more detail below (as well as in our March 12, 2008 letter to HKA), HKA's responses to selected interrogatories are deficient or otherwise improper. Morever,

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HKA's proposed revisions to the schedule in this case are self-serving, and demonstrate HKA's disregard for the requirement to attempt to resolve such matters without involving the Court. ARGUMENT I. HKA's Objections And Responses To Defendant's Interrogatories Are Improper As explained above, HKA's approach to our interrogatories was to respond in piecemeal, relying on general and vague objections. Indeed, notwithstanding our compliance with HKA's last request that we detail our objections to HKA's responses in writing, HKA declined to provide any additional information whatsoever. HKA's failure to respond to our discovery requests would subject the United States to the kind of trial by ambush that the discovery rules are designed to avoid.5/ Interrogatory No. 2. Interrogatory No. 2 requests that HKA identify people "responsible for the negotiation or performance" of the contract at issue and a description of such responsibility. HKA has identified Richard Hernandez, Anne Hernandez, Roland Hill, Nancy Cooper, and Joseph Figueroa. HKA also provided a brief description of those individuals' knowledge with respect to this case. Although HKA's response appears to be responsive ­ and we are satisfied generally with its response to this interrogatory ­ HKA also asserts a variety of objections to the interrogatory, upon which HKA may be declining to provide additional information. Accordingly, we asked

See RLI Ins. Co. v. B & W Contractors, Inc., 2007 WL 474949, *1 (N.D. Miss. Feb. 9, 2007) ("The court cautions defendants that they will not be permitted to conduct a trial by ambush, and the court may well exclude certain evidence at trial if it becomes apparent that plaintiff would be unduly prejudiced by the admission of such evidence."); Chesler v. United States, 118 F.R.D. 1 (D.D.C. 1987) (granting defendants' motion for an order to compel the plaintiff to answer certain interrogatories, or, in the alternative, to exclude at trial any evidence and witnesses which have not been included in those discovery responses absent good cause shown). -6-

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that HKA confirm whether or not there are other HKA employees that were "responsible for the negotiation or performance" of the contract at issue. HKA refuses to do so. Interrogatory No. 4. Interrogatory No. 4 asks HKA to identify "in detail": (1) "the factual bases for the allegation contained in paragraph 14(j) of HKA's Complaint in this case, that the Government excluded HKA from portions of the project and prevented HKA from performing the contract work at those times and places"; and (2) "all specific instances where HKA alleges such exclusion to have occurred." In HKA's initial (1/25/08) response, HKA stated only that "throughout the Project, the Government failed to obtain the necessary cooperation of other agencies, including the cooperation of the Imperial Irrigation District which had control over allowing right of entry to the Project." HKA's second (2/22/08) response further identified the City of Indio and alleged that defendant "failed to obtain necessary permits [to] allow[] HKA to perform Imperial Irrigation District required work within the street right of way." Because HKA continues to assert objections to this interrogatory, it is unclear whether HKA's various responses are exhaustive. First, while HKA 's response specified only the Imperial Irrigation District and the City of Indio, HKA's response suggests that the Government failed to obtain the cooperation of other, unidentified agencies. Second, although HKA's responses identify alleged instances in which the Government failed to cooperate, HKA has identified no instances in which "the Government excluded HKA from portions of the project" or "prevented HKA from performing the contract." Indeed, HKA entirely has failed to identify "all specific instances where HKA alleges such exclusion to have occurred." HKA should be required to confirm that there are no instances in which "the Government excluded HKA from

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portions of the project" or "prevented HKA from performing the contract." If there are such instances, HKA should enumerate all specific instances of such exclusions. Interrogatory No. 5. Interrogatory No. 5 asks HKA to identify "in detail": (1) "the factual bases for the allegation contained in paragraph 14(i) of HKA's Complaint in this case that the Government interfered with or otherwise disrupted or delayed HKA's performance of the contract"; and (2) "each specific instance where HKA alleges such interference occurred." In HKA's initial (1/25/08) response, HKA answered: "[T]hroughout the Project, the Government failed to timely respond to request for information, request for clarifications and request for change orders[.] Furthermore, the Government failed to timely identify the requirements of its customer/end user, and also frequently misdirected work and misinterpreted contract requirements." In HKA's second (2/22/08) response, HKA asserted that it "has sufficiently responded to this interrogatory." In particular, HKA argues that "[i]n order for HKA to further respond to this interrogatory and to provide the exact date of every single interference, disruption or delay, HKA would have to engage in a burdensome and expensive research of project records generated during approximately 18 months . . . ." Finally, HKA argues that it "has answered by specifying the HKA records from which the answer may be obtained by the [United States]." Because HKA continues to assert objections to this interrogatory, it is unclear whether HKA's various responses are exhaustive. Moreover, the Government is entitled to the details we seek. Indeed, HKA thus far has provided no factual details to support the allegation contained in paragraph 14(i) of its complaint. HKA's response to this interrogatory is no more sufficient than the allegation in HKA's complaint to which the interrogatory is directed.

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HKA's reliance upon what is now RCFC 33(d) and Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221 (10th Cir. 1976), is misplaced. In that case, "the responding party specifically identified documents which would provide the [requested] information." Continental Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 686-87 (D. Kan. 1991) (emphasis in original); see also Sabel v. Mead Johnson and Co., 110 F.R.D. 553, 556 (D. Mass. 1986) (holding that "a response pursuant to Rule 33(c) must refer to specific documents and state that the information sought can be found therein"). Moreover, Daiflon "was decided in 1976, prior to the 1980 Advisory Committee Note" to the Rule. Caton, 136 F.R.D. at 687 n.1. In Caton, the district court, quoting the 1980 Advisory Note, explained that it is "an abuse" by the responding party to "direct[] the interrogating party to a mass of business records or by offering to make all of the records available." Id. at 686-87 (holding that "plaintiff has failed to identify, with specificity, where the information can be obtained" and that defendant "is entitled to a specific and substantive answer" regarding "the dollar amount of plaintiff's claimed damages"); see also id. at 688-89 (holding defendant "must be allowed to require the accusing party to set forth, with particularity, what he is accused of doing, not doing, or both"). In this case, HKA has not met the standard articulated in either Daiflon or the 1980 Advisory Note to the Federal Rules of Civil Procedure. Finally, our discovery request is aimed at plaintiff's beliefs and intent regarding the factual bases of its claim; the Government is not required to review HKA's documents in an attempt to divine upon what putative "facts" HKA will rely to support its claims. See id. at 690 ("Plaintiff's argument that defendant can discern, from the general mass, exactly what plaintiff claims . . . is almost absurd.").

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Interrogatory No. 6. This interrogatory requires HKA to "[s]tate in detail the factual bases for the allegation contained in paragraph 14(o) of HKA's Complaint in this case that contract plans, specifications or other materials provided to HKA by the Government were not accurate, workable, correct, or sufficient, and identify every such error or alleged defective specification." In response, HKA listed numerous items covered by the contract, including, but not limited to: "weed barriers, permits, modular building, asphalt quantities, aggregate base, sidewalks, anti climb fabric for the fence, water meters, traffic control testing for subgrade and asphalt or soil testing, lockers, [and] service conduits . . . ." Although HKA has identified categories of contract work, regarding which HKA alleges the Government allegedly provided defective specifications, those categories are not themselves the contract specifications. Rather, HKA must identify "every . . . alleged defective specification." The Government is entitled to know each and every contract specification ­ identified by number ­ that HKA alleges is defective. See Caton, 136 F.R.D. at 689 ("Thus interrogatories, or other discovery thrusts, directed at complaints, answers, replies or other basic pleadings . . . to discover the detail factual basis for a particular allegation or alleged cause of action, are entirely proper and appropriate."). This, HKA has not done, and the Court should compel HKA to comply. Interrogatory No. 7. This interrogatory requires HKA to "[i]dentify all costs HKA included in its various claims (e.g., the claims submitted on or about December 13, 2005, December 23, 2005, December 15, 2005, December 20, 2005, February 23, 2006, and May 3, 2006) submitted to the contracting officer, but for which costs the Plaintiff does not seek compensation under its First Amended Complaint." It further asks HKA whether "any costs

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included in any claim duplicate costs included in any other claim" and, if so, instructs HKA "[to] identify the duplicated costs." HKA responded that its amended complaint "seeks damages, including but not limited [to] those arising from the unilateral change order regarding the January 25th proposal, lights and security cameras for unilateral change order dated November 30, 2005, light car wash water, electrical utility conduit, for the addition of scope of work due to Imperial Irrigation District, contract scope of work changes, payment withholdings, extra work, including but not limited to wires and asphalt work, interest and prompt payment penalties pursuant to the contract and relevant statutes." HKA further asserted that "[i]nvestigation and discovery is continuing, and to further respond to this interrogatory would require the opinion of expert witnesses." This interrogatory asks HKA to identify particular costs, not categories of damages. In particular, we are entitled to know whether HKA has abandoned certain claims that were originally submitted to the relevant contracting officer. To that end, we asked HKA to identify costs included in HKA's various claims to the contracting officer that HKA is not pursuing under its First Amended Complaint. Although HKA generally described the subject matter of alleged unilateral change orders and changes to the contract scope of work, HKA did not answer this interrogatory at all. HKA submitted at least six claims to the contracting officer and must know whether some costs in each claim are duplicative of each other, or are not being sought in this case. See, e.g., AAB Joint Venture v. United States, 74 Fed. Cl. 367, 371 (2005) ("The purpose of the certification requirement is to force contractors to use specificity in the claim that they submit to the contracting officer so that the contracting officer can give the claim full consideration before

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it goes to the court."); Medina Const., Ltd. v. United States, 43 Fed. Cl. 537, 547 (1999) ("The purpose of certification is to facilitate settlements based upon a truthful submission of the contractor's costs. . . .Certification discourages the submission of fraudulent or inflated claims by making contractors liable for fraudulent representations."). Interrogatory No. 9. This interrogatory requests that HKA"[s]tate in detail the factual bases for, and identify any documents that support, the allegation contained in paragraph 14(h) of HKA's Complaint in this case that the Government required HKA to provide labor, services, equipment, and materials beyond the requirements of the contract without compensation." HKA responded that the Government required HKA to provide the following without compensation: "security lighting and cameras, site trellis on rear of building, phone and terminations allowance, additional asphalt paving, redundancy and additional work required by the Imperial Irrigation District beyond point of service to point of connection, two walk through man gates, [and] anti climb fence fabric." HKA also responded that "[t]o further respond to this interrogatory would necessitate the preparation or the making of a compilation, abstract, audit or summary" that HKA is not required make. Due to HKA's objections to this interrogatory, it is unclear whether HKA's list of items or tasks that were allegedly "beyond the requirements of the contract" is exhaustive. The Government is entitled to know of all alleged changes for which HKA now seeks compensation. Moreover, the Government asks HKA, in this interrogatory, not simply to identify categories of work, but to "detail the factual bases for" HKA's allegation that such work was "beyond the requirements of the contract." This, HKA has not done, but should be compelled to do.

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Accordingly, we ask that this Court issue an order compelling HKA to respond to the interrogatories discussed above. II. The Court Should Grant Our Motion For An Enlargement Of Time We respectfully ask the Court to amend the current schedule to reflect the following deadlines:
Event Close of non-expert discovery Designation of experts Expert reports Close of expert discovery including depositions Current Deadline 5/8/08 3/31/08 5/26/08 7/14/08 New Date 11/30/08 6/30/08 12/31/08 1/31/09

Such an enlargement of time is necessary because HKA did not complete its document production, including replacement CD-ROMs, to the Government until March 6, 2008. Moreover, we have engaged in a significant and protracted effort, over the course of several months, to resolve the instant discovery dispute ­ accommodating each of HKA's requests for additional time in the process ­ including drafting our detailed March 12, 2008 letter per HKA's request, but to which HKA thus far has declined to respond. In that regard, we once again note, as we did in our first motion for enlargement, that HKA, as part of its initial disclosures, listed approximately 130 individuals, not employed by the Government, likely to have discoverable information that plaintiff may use to support its claims or defenses. Those disclosures did not even generally "identify[] the subject of the information" likely possessed by those individuals, see RCFC 26(a)(1)(A), and HKA, to date, has not remedied or otherwise supplemented those

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initial disclosures. Thus, we will not be in a position to assess which of those potential witnesses to depose until HKA provides complete answers to our interrogatories. We also learned for the first time, in HKA's discovery responses, that HKA intends to present expert testimony on damages. Accordingly, we require additional time to conduct a thorough review of HKA's documents, to retain a damages expert, and to provide him or her with sufficient time to learn the facts of the case, to review any necessary documentation, and to render an opinion. Finally, counsel for the United States will be out of the office for the week of April 20, 2008, and from July 14-23, 2008. Agency counsel likewise will not be available from April 6-13, 2008. Finally, In our March 12, 2008 letter to HKA, we asked HKA whether it would oppose our request for a three month enlargement of time to each item on the Court's September 6, 2007 scheduling order. HKA, in its March 18, 2008 letter, purported "to once again accommodate []our request to extend the deadlines in this case." See Exhibit 7. However, due to Ms. Apanian's scheduled maternity leave in July through mid-October, HKA asserted that it "cannot agree to any deadlines which fall within that time frame." Id. HKA accordingly proposed the following schedule:
Event Close of non-expert discovery Designation of experts Expert reports Close of expert discovery including depositions Current Deadline 5/8/08 3/31/08 5/26/08 7/14/08 HKA's Proposed Date 6/5/08 6/30/08 11/7/08 12/15/08

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HKA itself thus has proposed a five month total extension to the schedule in this case. However, rather than proposing that every deadline be extended by five months, HKA instead would ask this Court to extend only selected deadlines as necessary for its own convenience, without due regard for our request or for the need to create a workable and realistic schedule. Thus, for example, with respect to the close of non-expert discovery, HKA consented only to a single month extension, despite the fact that we informed HKA of our intention to seek, and our need for, an enlargement of time of at least three months to that deadline. Moreover, it strains credulity that either HKA's or the Government's expert will require more than four months to draft a report; yet, that is precisely what HKA has proposed. In sum, HKA can offer no principled basis for asking this Court to extend the overall discovery schedule by five months, while insisting on only short extensions of specific deadlines contained therein. CONCLUSION For the reasons stated above, the Government respectfully requests that the Court compel HKA to respond to the interrogatories at issue, and that the Court issue a scheduling order setting deadlines per our above request.

Respectfully submitted,

JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

JEANNE E. DAVIDSON Director

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s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Matthew H. Solomson MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division, Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 March 26, 2008 Attorneys for Defendant

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