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

Case 1:06-cv-00146-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) TETRA TECH EC, INC., ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

Fed. Cl. No. 06-146C (Judge Wheeler)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DEPOSE EXPERT Plaintiff Tetra Tech EC, Inc. ("Tetra Tech"), by its counsel, pursuant to Rules 7 and 26(A)(2)(C) of the United States Court of Federal Claims ("RCFC") and the Discovery Orders of this Court, hereby files its opposition to the Defendant's motion to depose Tetra Tech's expert. I. INTRODUCTION The Court's May 31, 2007 Discovery Order explicitly provides that "further discovery shall be limited to the completion of fact depositions, including depositions under RCFC 30(b)(6)," except for the limited written discovery also permitted in the Court's Order. (Emphasis added). The Government has not shown good cause for disregarding the Court's Order. Instead, the Government offers two excuses for not raising this issue with the Court in March, April or May 2007: 1. The Government "inadvertently" limited its March 21 motion for an extension to "fact" discovery.
2.

Tetra Tech advised in mid-April that it would permit the untimely deposition of Mr. Lieblich "while reserving a right to object at trial".

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The Defendant's inadvertence on March 21 does not excuse its failure to correct its error before the Court in subsequent filings or at the May 30 hearing conference. When Tetra Tech opposed Defendant's second motion for an extension on April 27, Tetra Tech requested the Court to close all discovery as to the Government. The Government knew then Plaintiff was no longer making Dr. Lieblich available. Tetra Tech's offer to permit the Government to depose Dr. Lieblich after the close of expert discovery was contingent upon three factors: (1) the Government would carry out its commitment to pursue settlement in good faith; (2) Tetra Tech reserved its right to object to the Government's use of this unauthorized and untimely deposition at trial; and (3) there would be no further extensions of discovery. The Government never responded to Tetra Tech's March 8, 2007 settlement offer, sought further extensions of discovery and, on May 14, advised Tetra Tech that it did not intend to settle this case. Thus, the conditions underlying Tetra Tech's agreement to the expert deposition were not fulfilled by the Government. Tetra Tech should not be required to expend its resources to prepare for and defend a deposition that the Government has no right to take. The Government is not prejudiced by the Court denying its motion because, as pointed out by the Government, it can cross-examine Dr. Lieblich at trial. II. STATEMENT OF FACTS 1. The Government's motion requests the Court to order Tetra Tech to permit the

deposition of its retained expert in contravention of no less than four Orders of this Court. Specifically: · On August 10, 2006 the Court Ordered the close of discovery on March 30, 2007;

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·

By Docket Report Order of August 11, 2006, the Court made clear that expert discovery must also be completed by March 30, 2007 ordering the parties to "Set Deadlines/Hearings pursuant to [the August 10, 2006] Scheduling Order".

·

By Order dated March 26, 2007, the Court granted the Government's unopposed motion requesting an extension of time "for conducting fact discovery" stating that "Defendant's unopposed motion to modify the schedule for completion of fact discovery is hereby GRANTED. The parties shall complete fact discovery on or before April 30, 2007." (Emphasis added).

·

By Order dated May 31, 2007, the Court Ordered that "further discovery shall be limited to the completion of fact depositions" and that the parties "may want to limit such other discovery to the new allegations in Plaintiff's Amended Complaint." 2. Tetra Tech filed its expert report of Dr. David A. Lieblich with the Defendant's

counsel on January 19, 2007. Dr. Lieblich has a PhD in Geophysics. The opinions in his report do not relate to Tetra Tech's calculation of damages, much less damages as set forth in the amended portions of Plaintiff's amended complaint. 3. The Government elected not to file its own expert report by the January 19, 2007

deadline. Despite having the expert report of Dr. Lieblich in hand, the Government also elected not to file a rebuttal to Dr. Lieblich's expert report or make any expert disclosures by the February 20, 2007 deadline. 4. settlement. 5. By motion filed on March 21, 2007, the Government requested the Court to On March 8, 2007, Tetra Tech made a detailed, comprehensive offer of

modify the scheduling order to "enlarge the period for conducting fact discovery by 30 days" and

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advised that the "parties do not intend to issue new interrogatories, requests for production, or written requests for admission." In its motion, the Government further advised that the request was being "made in order to provide the parties additional time in which to discuss settlement" because Tetra Tech had made an offer of settlement on March 8, 2007. For this reason and this reason alone, Tetra Tech did not oppose the Government's motion. 6. The Court granted the motion on March 26, 2007 by Docket Report Order stating

that, "Defendants unopposed motion to modify the schedule for completion of fact discovery is hereby GRANTED. The parties shall complete fact discovery on or before April 30, 2007." 7. In April 2007, after the Court had granted the Government's motion to limit

further discovery to "fact" discovery, the Government raised the issue of deposing Dr. Lieblich. Counsel for Plaintiff advised that the Government had drafted the motion and that the Court's March 26 Docket Report Order expressly limited discovery to "fact" discovery as requested and that Plaintiff could not overlook that limitation. 8. By email dated April 16, 2007, counsel for Plaintiff agreed to allow the untimely

deposition of Dr. Lieblich to go forward under three circumstances: (a) "to facilitate settlement", (b) "without waiving our right to object at trial in the event the case does not settle", and (c) if the Government did "not seek an extension on grounds of the protest". See Govt. Exhibit A. 9. On April 20, the Government advised that it had cancelled depositions for the

week of April 23 and April 30, 2007 due to its protest responsibilities. See Govt. Exhibit B. 10. On April 24, 2007, the Government filed a motion for extension of the discovery

deadline based on its counsel's responsibilities in the Ravens protest. The Government admits that its April 24, 2007 motion again requested the Court "to enlarge the period for fact depositions". Govt. June 3 Motion, p. 1. (Emphasis added)

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11.

By opposition filed on April 27, 2007, Tetra Tech opposed the motion. Tetra

Tech specifically requested that the Court permit Tetra Tech to complete discovery and deny the Government any discovery whatsoever, much less expert discovery. 12. On May 3, 2007, the Government filed its reply to Tetra Tech's opposition to the

April 24 motion for extension. In its reply, it is absolutely clear that the Government knew that Tetra Tech was proposing that the Court deny the Government any discovery whatsoever, including expert discovery. 13. By Order dated May 7, 2007, the Court granted Tetra Tech's motion to amend its

complaint and extended the time for fact depositions until June 14, 2007. 14. On May 14, 2007, Tetra Tech's counsel contacted Government counsel and asked

if the Government intended to respond to Tetra Tech's March 8, 2007 settlement offer. Counsel for the Defendant advised that the Department of Justice did not want to pursue settlement in this case and was recommending that its client (i.e., the agency) not do so. 15. On May 15, 2007, the Government served written discovery on Tetra Tech

seeking among other things expert discovery as follows: · · · All written communications between you and the expert witnesses that you expect to testify on your behalf at trial. All documents that you provided to the expert witnesses that you expect to testify on your behalf at trial. All documents relied upon by your expert witnesses that you expect to testify on your behalf at trial. 16. On May 17, 2007, Tetra Tech sent the Government a letter advising that the

Court's May 7, 2007 Order did not re-open discovery but merely extended the prior discovery which was limited to fact witness depositions stating:

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. . .. The Court's May 7, 2007 Order on Pending Motions did not open the door for written fact discovery, much less expert discovery. The May 7, 2007 order merely extended the existing discovery period, which was limited to fact depositions and Tetra Tech's outstanding document issues. 17. The parties were unable to reach agreement on the scope of the Court's May 7

Order and requested a conference call with the Court, which was held on May 30. At the May 30 hearing conference, Tetra Tech argued that the Court's order extended discovery only to fact depositions. The Government argued that was not the case. The Government never discussed, argued or suggested the possibility of the Government deposing Tetra Tech's expert or conducting any expert discovery. 18. By order dated May 31, 2007, the Court memorialized its ruling at the May 30,

2007 hearing conference, ordering that further discovery, except as otherwise described in the Order, "shall be limited to the completion of fact depositions, including depositions under 30(b)(6)". The Court recommended that any further discovery be limited to discovery related to "the new allegations in Plaintiff's Amended Complaint." Nowhere in the order does the Court mention the possibility of expert discovery. III. ARGUMENT The Court should deny the Government's motion for the following reasons: (1) By its own motions, the Government repeatedly requested that the Court limit any extensions of discovery to fact depositions, and the Court granted those motions. (3) Tetra Tech's Offer for the untimely deposition of Dr. Lieblich was made for the limited purpose of facilitating settlement if the Government agreed to complete discovery by April 30, 2007 and was subject to Tetra Tech's right to object to the Government's use of the deposition at trial.

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(4) After the Government having made no settlement response and cancelling all discovery, Tetra Tech opposed on April 27, 2007 the Government's motion for another extension and requested the Court to deny the Government any discovery whatsoever, much less expert discovery, that had already expired. (5) There was no basis for the Court's May 7, 2007 Order to cover expert discovery because an extension of expert discovery had never been presented to the Court. (6) At the May 30, 2007 conference, the Court ruled that discovery under the May 7, 2007 Order was limited to fact depositions. The Government never raised the issue of expert discovery at the hearing conference. The May 31 Order adopted the Court's May 30 rulings. (7) The Government has had ample opportunity to pursue expert discovery, but has failed to do so. IV. CONCLUSION Tetra Tech should not have to prepare for and defend a deposition the Government has no right to take. The Government is not prejudiced by the Court denying its motion because it can cross-examine Dr. Lieblich at trial. To grant the motion would improperly reward the Government. In conclusion, Plaintiff Tetra Tech EC, Inc. respectfully requests that the Government's motion to depose Tetra Tech's expert be denied. TETRA TECH EC, INC.

Date: June 8, 2007

By:

_s/ William W. Thompson , Jr.______________ William W. Thompson, Jr. Robert D. Banfield PECKAR, ABRAMSON, BASTIANELLI & KELLEY, LLP

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1133 21st Street, N.W., Suite 500 Washington, D.C. 20036 (202) 293-8815 Telephone (202) 293-7794 Facsimile

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of June 2007, a copy of the foregoing PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DEPOSE EXPERT, was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ William W. Thompson, Jr.

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