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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CASE NO.: 06-345-C JUDGE: ERIC G. BRUGGINK GRACE AND NAEEM UDDIN INC., Plaintiff, v.

THE UNITED STATES, Defendant. __________________________________/ PLAINTIFF, GRACE AND NAEEM UDDIN, INC.'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO UTILIZE DEPOSITIONS IN CASE NO. 07-21936-CIV-SEITZ Plaintiff, GRACE AND NAEEM UDDIN, INC., (hereinafter

"GNU"), by and through undersigned counsel and pursuant to the applicable Rules of the United States Court of Federal Claims, hereby files Plaintiff, Grace and Naeem Uddin, Inc.'s Reply to Defendant's Depositions Opposition in Case To Plaintiff's Motion and To in Utilize support

No.:

07-21936-CIV-Seitz,

states as follows:

BACKGROUND 1. On or about March 14, 2008 GNU filed its Motion to

Utilize Depositions in the case styled Grace and Naeem Uddin, Inc. v. Jacobs Facilities, Inc., Case No. 07-21936-CIV-Seitz. In

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CASE NO.: 06-345-C Grace and Naeem Uddin, Inc. v. Jacobs Facilities, Inc. GNU is suing the USDA project architect for professional malpractice in United Florida. 2. Because the facts, witnesses, and issues in GNU's case States District Court for the Southern District of

against the U.S. and GNU's case against Jacobs have virtually complete overlap, GNU requests that the depositions be conducted once with all counsel for all parties present. THIS HONORABLE COURT POSSESSES AUTHORITY TO ALLOW JOINT DEPOSITIONS 3. Rule 1 of the Rules of the United States Court of Federal

Claims, states in pertinent part, that the Rules "...shall be construed and administered to secure the just, speedy, and

inexpensive determination of every action. 4. Furthermore, pursuant to RCFC 83(b)[a], "[a] judge may

regulate practice in any manner consistent with federal law or rules adopted under 28 U.S.C. § 2072 or 2503(b)." The comment to Rule 83 indicates that this Honorable Court possesses

"...authority to regulate practice in an individual case, so long as that practice is consistent with federal law and rules." 5. It is well established that "...the deposition-discovery

rules are to be accorded a broad and liberal treatment." Hickman v. Taylor, 329 U.S. 495, 507 (U.S. 1947). Furthermore, it is not 2

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CASE NO.: 06-345-C a ground for refusing an examination that the testimony sought might be used in another action. De Seversky v. Republic

Aviation Corporation, 2 F.R.D. 183 (E.D.N.Y. 1941). 6. GNU seeks to depose each relevant witness once in a

common deposition with Jacobs counsel present. The USDA seeks to depose each relevant witness twice ­ once in the Jacobs matter and once in the USDA matter. 7. Federal Because the heart of the United States Rules of Court of Claims supports the just, speedy, and inexpensive

determination of every action, this Honorable Court possesses the authority to require the U.S. to perform joint depositions. THE U.S. WOULD NOT BE PREJUDICED IN ANY CAPACITY BY JOINT DEPOSITIONS 8. party) By conducting have joint depositions for GNU the (and every other to be

would

the

opportunity

deposition

admitted more readily and with much greater potential scope in each respective case because all counsel would be present for all depositions whether a Jacobs representative, a USDA

representative, a GNU representative or a non-party were being deposed. 9. Because the facts, witnesses, and issues are the same in

both cases, the scope of discovery covers the same facts and

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CASE NO.: 06-345-C issues in both cases (e.g. how was GNU wrongfully terminated and what role did Jacob's negligence play regarding the same). 10. whether USDA will face the same issues, with the same deponents the depositions are joint or separate, GNU simply

requests that common witnesses be noticed in both cases and taken once as opposed to twice. 11. the Because the scope of discovery is equal in both cases and U.S. will or face the same issues ­ ­ whether U.S. by in will conduct joint not of

depositions experience

separate or

depositions loss of any

the right

prejudice

depositions jointly. GNU WILL COMPLY WITH THE TOUGHY REGULATIONS TO THE EXTENT REQUIRED 12. The Toughy regulations indicate the procedure under which

U.S.D.A. employees may be deposed in various circumstances. (See Defendant's Opposition To Plaintiff's Motion to Utilize

Depositions In Case No. 07-21936-CIV-Seitz). 13. GNU will comply with the Toughy regulations and any other procedures, to the extent that they apply to any

relevant

depositions noticed in the GNU v. Jacobs matter respect to a joint deposition. 14. Moreover, the or Toughy regulations of 4 the would 7 apply C.F.R. only to

representatives

employees

USDA.

Sections

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CASE NO.: 06-345-C 1.210 ­ 1.219. They would not apply to representatives of Jacobs Facilities, a private entity. 15. Therefore, the fact that GNU may be required to comply

with regulations governing the deposition of USDA employees is not an impediment to joint depositions. WHEREFORE, requests this the Plaintiff, Court GRACE to AND NAEEM UDDIN, INC., and

Honorable

grant

Plaintiff,

Grace

Naeem Uddin, Inc.'s Motion to Utilize Depositions in Case No.: 07-21936-CIV-Seitz to the extent the joint use does not infringe upon the Toughy regulations. Respectfully submitted,

s/ David R. Elder Attorney for Plaintiff DAVID R. ELDER Elder & Lewis, P.A. Bayview Executive Plaza, Suite 301 3225 Aviation Avenue Coconut Grove, FLA 33133 Tel: (786) 314-5155 Fax: (503) 314-5811

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CASE NO.: 06-345-C CERTIFICATE OF FILING I hereby certify that on April 7, a copy of the foregoing "PLAINTIFF, GRACE AND NAEEM UDDIN, INC.'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO UTILIZE DEPOSITIONS IN CASE NO. 07-21936 CIV SEITZ 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 R. Elder Attorney for Plaintiff DAVID R. ELDER Elder & Lewis, P.A. Bayview Executive Plaza, Suite 301 3225 Aviation Avenue Coconut Grove, FLA 33133 Tel: (786) 314-5155 Fax: (503) 314-5811

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