Free Motion to Take Deposition - District Court of Federal Claims - federal

Case 1:06-cv-00146-TCW

Document 24

Filed 06/03/2007

Page 1 of 4

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

No. 06-146C (Judge Wheeler)

DEFENDANT'S MOTION FOR LEAVE TO TAKE DEPOSITION OF PLAINTIFF'S EXPERT Defendant, the United States, respectfully requests, pursuant to the Court's order dated May 31, 2007,1 leave to take the deposition of plaintiff's proposed expert, David Lieblich. The original August 10, 2006 scheduling order called for discovery to be completed by March 30, 2007. On March 21, 2007, we filed an unopposed motion to enlarge the fact deposition period by 30 days, until March 30, 2007. The Court granted the motion. In our March 21, 2007 motion we inadvertently limited our request to an enlargement of "fact" deposition discovery. Counsel for Tetra Tech pointed out our mistake in April 2007, when we attempted to schedule the deposition of Mr. Lieblich. In e-mails dated April 16 and April 20, 2007, counsel for Tetra Tech advised that plaintiff would permit the deposition of Mr. Lieblich to go forward, while reserving a right to object at trial. Ex. A and B, attached. On April 24, 2007, we filed a second motion to enlarge the period for fact depositions, which Tetra Tech purported to oppose, although in its opposition brief Tetra Tech requested that The May 31, 2007 order authorized us to file, by no later than June 8, 2007, a motion requesting leave to take additional discovery in the event that the parties could not resolve their existing discovery disputes. We have promptly filed this motion because we believe that Mr. Lieblich's deposition is a discrete issue upon which compromise will not possible. We continue to consult with Tetra Tech concerning our remaining disputes, and respectfully reserve the right to file an additional motion in the event that those disputes cannot be resolved.
1

Case 1:06-cv-00146-TCW

Document 24

Filed 06/03/2007

Page 2 of 4

it be allowed additional time in which to take depositions. On April 30, 2007, we filed a brief in opposition to Tetra Tech's motion for leave to file an amended complaint. In our brief, we requested that, in the event that Tetra Tech's motion was granted, discovery be re-opened for a period of 60 days. The Court's May 7, 2007 order granted that request "in part" by "extend[ing]" the discovery period by 45 days. The Government did not raise the issue of Mr. Lieblich's deposition at the telephonic status conference held on May 30, 2007, because we understood that issue to have been resolved by Tetra Tech's previous agreement to produce Mr. Lieblich for a deposition. In an e-mail dated May 31, 2007, Tetra Tech's counsel advised that he was no longer willing to allow Mr. Lieblich's deposition. Allowing Mr. Lieblich to be deposed will help ensure an efficient trial by narrowing the issues that will be the subject of cross-examination. Allowing Mr. Lieblich's deposition would not delay the resolution of this case, because his deposition could be taken at any time prior to trial. Nor would allowing Mr. Lieblich's deposition cause any unfair prejudice to Tetra Tech, which had previously agreed to produce Mr. Lieblich for a deposition. CONCLUSION For the foregoing reasons, we respectfully request leave to take the deposition of plaintiff's proposed expert, David Lieblich. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director -2-

Case 1:06-cv-00146-TCW

Document 24

Filed 06/03/2007

Page 3 of 4

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 June 3, 2007 Attorneys for Defendant

-3-

Case 1:06-cv-00146-TCW

Document 24

Filed 06/03/2007

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of June, 2007, a copy of the foregoing "DEFENDANT'S MOTION FOR LEAVE TO TAKE DEPOSITION OF PLAINTIFF'S 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/ Roger A. Hipp

-4-