Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:06-cv-00167-TCW

Document 57

Filed 07/10/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) ) Defendant. ) ____________________________________) OTAY MESA PROPERTY, L.P., et al.,

No. 06-167 L (and consolidated cases))

Hon. Thomas C. Wheeler (Electronically Filed July 10, 2008)

MOTION BY THE UNITED STATES TO AMEND PRETRIAL ORDER

Defendant, the UNITED STATES, hereby moves this Court, for good cause shown, to amend its Pretrial Order entered May 16, 2008, (as amended on or about June 18, 2008) to extend the date for the production of the expert photo analyst report and expert appraisal report from July 10 until July 15, 2008. This extension will not otherwise affect the discovery schedule. Pursuant to the Court's May 16, 2008 order, the parties were to exchange expert

reports on or before June 16, 2008. When the parties initially proposed this date to the Court, both parties were uncertain as to whether expert witnesses would be utilized in the upcoming liability trial, and if so, what the nature of those experts and the scope of their reports might be. As a result, on June 18, 2008, the parties submitted a joint motion to extend the date for the production of expert witness reports. Thus, in mid-June, the discovery schedule was modified and the date for the production of the government's expert witness reports was extended until

Case 1:06-cv-00167-TCW

Document 57

Filed 07/10/2008

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July 10, 2008. During the course of discovery, the government ascertained that in would be necessary to engage the services of an expert photo analyst. The government determined that the National Geospatial-Intelligence Agency would provide the most qualified expert and would be in a position to best assist the Court in analyzing the evidence, including photographs, in order to resolve issues raised by the plaintiff. Because of national security interests, however, the National Geospatial-Intelligence Agency cannot use its own photographs and data. The data and the intelligence gathering capability of the Agency would be made public during trial of this case if the Agency witness relied on such data. The Agency therefore worked diligently to obtain publically available data. In addition, the Agency had to determine which of its analysts would be able to testify in open court without compromising his/her security and ability to work undercover on future Agency projects. As a result of these Agency security concerns, the government now seeks a short extension of three business days, until July 15, 2008, to produce the report of its expert photo analyst witness. Counsel for Defendant conferred with counsel for Plaintiff via email from July 7 through July 10, 2008, and Plaintiff has agreed to an extension until July 15, 2008 for the government to produce its expert appraisal report. Plaintiff objects to an extension of three business days with respect to the production of the photo analyst report. Defendant nevertheless requests that the Court grant it such an extension. Plaintiff will not be prejudiced by such an extension. Wherefore, the United States respectfully requests that the Court's Pretrial Order be amended to provide that the government's expert appraisal and photo analyst expert reports shall be produced to Plaintiffs by July 15, 2008. The enlargement of the above deadlines will not affect any of the other deadlines

Case 1:06-cv-00167-TCW

Document 57

Filed 07/10/2008

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established by the Court in its order of May 16, 2008 (as modified). Respectfully submitted this 10th day of July, 2008, RONALD J. TENPAS Assistant Attorney General Environmental & Natural Resources Division s/Susan V. Cook signed by /s E. Kenneth Stegeby SUSAN V. COOK, Senior Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044 Tele (202) 305-0470 Fax (202) 305-0506 [email protected] Counsel of Record for Defendant