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

Case 1:06-cv-00312-TCW

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Filed 01/10/2008

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UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) MULTISERVICE JOINT VENTURE, LLC, ) ) Plaintiff, ) ) No. 06-312C -against) (Judge Wheeler) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______________________________________) PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME Plaintiff Multiservice Joint Venture, LLC ("MJV"), through its undersigned counsel, respectfully submits its Response to defendant's Motion for Enlargement of Time. As discussed below, while the plaintiff neither challenges the extension of the discovery period nor declines to coordinate ultimately with defendant's counsel to schedule

depositions at issue, the plaintiff remains nonetheless compelled to clarify various misrepresentations set forth in the defendant's submission in order to give proper perspective to the matter at hand. In support of this Response, the plaintiff states as follows: 1. As an initial matter, it bears noting that the defendant's

inaction constitutes the singular reason it has not completed these depositions at this juncture in waning moments of the discovery period. The defendant did not take steps to depose witnesses it has known about since November 20, 2006 when the plaintiff first disclosed their identity in its Initial Disclosures. The defendant has had fourteen months to depose these individuals but took no action to do so. Accordingly, the defendant, not the plaintiff, has unduly delayed to the initiation of these depositions. 2. Now, due to the above-described delay, the defendant seeks

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to place the onus on the plaintiff to coordinate the depositions the defendant belatedly seeks to take. In fact, however, the plaintiff

plainly does not have an obligation to coordinate or otherwise facilitate the scheduling of non-party depositions at the defendant's behest. 3. Moreover, the representation question raised by the

defendant in its motion is a red herring.

Again, the witnesses the The

defendant seeks to depose are non-party former employees.

plaintiff cannot effectuate the appearance of these individuals who no longer work at MJV for a deposition (or for trial) absent a subpoena any more than the defendant can. For that reason, the plaintiff

suggested in December 2007 that the parties agree on mutually agreeable dates for their putative depositions and that the defendant issue them subpoenas to compel their respective appearance. rejected that suggestion. 4. The plaintiff further agreed to consent explicitly to The defendant

defendant's counsel contacting these former employees for purposes of scheduling their depositions consistent with Disciplinary Rule 7-104(A). The defendant, however, rejected that suggestion as well. 5. Consequently, since these individuals were not senior

management employees and were not in a position to bind the joint venture, the plaintiff then took the position that its counsel would not represent these former employees in order to avoid still further delays in scheduling their depositions. In truth, the plaintiff has gone out its way to accommodate the defendant's scheduling of its 2

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eleventh hour depositions. 6. Finally, it is disingenuous, at best, for the defendant

to suggest it could not schedule the depositions earlier because it was working on its Rule 56(f) Motion and/or its Opposition to the plaintiff's pending Partial Summary Judgment Motion. At no point prior to the Court's December 7 Order granting the Rule 56(f) Motion did the defendant ever take a single step to schedule these depositions. 7. To reiterate, the plaintiff does not seek recession of the The

Court's January 10 Order extending the discovery period. 1

plaintiff will not, though, sit back and be made the scapegoat for the defendant's blatant dilatoriness in advancing its own discovery. Respectfully submitted,

s/Janice Davis____ _ Janice Davis Davis & Steele 1100 - 15th Street, N.W. Suite 300 Washington, DC 20005-1720 Telephone: 202-530-5828 [email protected] Email: Counsel to the Plaintiff Dated: January 10, 2008 CERTIFICATE OF SERVICE I hereby certify that, on the 10th of January 2008, a copy of
In light of the facts that these former employees have little or no demonstrable knowledge related to any disputed fact in this litigation and that their depositions should collectively take two days or less, the plaintiff only consented to extending the discovery period to February
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the plaintiff's Response to the defendant's Motion for Enlargement of Time was served, via electronic mail, on: Brian T. Edmunds, Esq. Trial Attorney Commercial Litigation Branch Civil Division -- Classification Unit United States Department of Justice 1100 L Street, N.W., 8th Floor Washington, DC 20530 Counsel for the Defendant

s/Janice Davis________________ Janice Davis

1.

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