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

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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 REPLY BRIEF IN SUPPORT OF ITS MOTION FOR AN ENLARGEMENT OF TIME Defendant, the United States, respectfully submits this reply brief in support of its April 24, 2007 motion to enlarge the period for taking depositions. Plaintiff, Tetra Tech EC, Inc., does not genuinely oppose our motion for an enlargement of time in which both parties may take depositions. After all, Tetra Tech argues in its brief that it should be permitted to take additional depositions. Tetra Tech's true position is that the Government's motion should be granted with respect to Tetra's Tech's ability to take depositions, but denied with respect to the Government's ability to do the same. The Court should reject Tetra Tech's asymmetric approach to discovery, and grant our motion to enlarge the deposition period by 25 days. We demonstrated in our motion that good cause exists for a 25-day enlargement of time. As stated in more detail in the declaration attached hereto, counsel had scheduled the last depositions in this case to take place between April 19 and April 30, 2007. Hipp Decl. ¶ 10. However, on April 12, 2007, the Government received a pre-filing notice of a forthcoming bid protest, Ravens Group, Inc. v. United States, No. 07-243 (Fed. Cl.), which was assigned to the Government's counsel in this case. Hipp Decl. ¶¶ 5-6. An initial scheduling conference was held on April 20, 2007, which resulted in an order that required the Government's counsel to take

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various actions during the week of April 23-27, 2007. Hipp Decl. ¶ 15. As a result of the extraordinary delay in Ravens Group, the Government's counsel was not able to take or defend depositions during the weeks of April 16-20 or 23-27, 2007, as originally anticipated. Hipp Decl. ¶ 17. Tetra Tech mistakenly contends that the delay in Ravens Group was "routine." Pl. Br. at 8. In fact, however, the delay was extraordinary. If Ravens Group had been a typical bid protest, the complaint and motion for injunctive relief would have been filed one or two days after the pre-filing notification, and it would have been possible for the Government's counsel to take and defend depositions in this case as scheduled. Hipp Decl. ¶¶ 13, 17. However, the plaintiff in Ravens Group waited an extraordinary seven days, until April 19, 2007, to file its complaint and motion for a preliminary injunction. Hipp Decl. ¶ 12. As a result, defense counsel was unable to travel for depositions during the two-week period following his actual bid protest duty. Tetra Tech will not suffer any prejudice if our motion is granted. Apart from one previous 30-day enlargement of time, the parties have adhered to the original discovery schedule.1 Moreover, Tetra Tech's purported desire to try this case as soon as possible cannot be squared with its decision to prolong this case by filing, on April 20, 2007, a motion for leave to

Tetra Tech falsely accuses the Government of "repeated delays and complete inattention to this case." Pl. Br. at 2. Because Tetra Tech's long list of supposed discovery grievances is not germane to the motion before the Court, we will not refute it in full in this brief. Instead, we will state that we have attempted in good faith to provide full responses to Tetra Tech's 29-part request for production of documents (not including subparts), its eight-part RCFC 30(b)(6) deposition notice (not including subparts), and numerous follow-up letters. If the Court would like us to discuss in detail the discovery history of this case, then we respectfully request leave to do so in a supplemental brief. -2-

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file an amended complaint. As stated more fully in our brief opposing that motion, if Tetra Tech's untimely motion to amend the complaint (which was filed 20 days after the close of written discovery and just 10 days before the scheduled close of deposition discovery) were granted, then fairness would require that discovery be re-opened for a short period of time. In the alternative, if the Court were to deny our motion, then the Court should also preclude Tetra Tech from taking additional depositions. Counsel for both parties planned on taking depositions between April 19 and April 30. We believe that counsel's expectations concerning that schedule were reasonable, but if we are mistaken, then Tetra Tech is also mistaken. Tetra Tech's argument that Court should punish the Government for not taking depositions earlier in the schedule, while sparing Tetra Tech from the same fate, is illogical. CONCLUSION For the foregoing reasons, we respectfully request that our motion to enlarge by 25 days the period for taking depositions be granted.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

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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 May 3, 2007 Attorneys for Defendant

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

No. 06-146C (Judge Wheeler)

DECLARATION OF ROGER A. HIPP I, Roger A. Hipp, under penalty of perjury pursuant to 28 U.S.C. § 1746, declare: 1. case. 2. I have served in my current position as a trial attorney for the United States I am counsel of record for defendant, the United States, in the above-captioned

Department of Justice, Civil Division, National Courts Section, since July 9, 2004. 3. On March 8, 2007, I attended a meeting with counsel for plaintiff, Tetra Tech EC,

Inc., at which Tetra Tech made a settlement proposal. 4. On March 21, 2007, I filed on behalf of defendant a motion to enlarge the period

for taking depositions by 30 days, until April 30, 2007, so that defendant could have additional time to evaluate the settlement proposal. The motion included these statements: "[C]ounsel for the Government is scheduled for bid protest duty from April 2 through April 13, and, accordingly, will not be able to travel for depositions during that time. Thus, we anticipate that should this motion be granted and the case does not settle, the parties would complete discovery during the last two weeks of April."

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5.

On April 12, 2007, the United States received a pre-filing notification of a bid

protest from counsel for the Ravens Group, Inc. 6. 7. The Ravens Group bid protest was assigned to me on April 12, 2007. On the morning of April 13, 2007, I participated in a teleconference with Robert

Banfield, counsel for Tetra Tech, and Margaret Simmons, counsel for the interested agency, the U.S. Army Corps of Engineers ("Corps"). 8. During the April 13, 2007 teleconference, counsel attempted to identify all

outstanding discovery issues, and discussed a tentative deposition schedule. I advised Mr. Banfield that the Government intended to take the following depositions: a. b. Tetra Tech's expert witness, David Lieblich. An RCFC 30(b)(6) witness on the topic of Tetra Tech's anticipated false positive / false alarm ratio. c. An RCFC 30(b)(6) witness on the topic of Tetra Tech's process for comparing the actual results of digging with predicted results. d. An RCFC 30(b)(6) witness on the topic of Tetra Tech's response to the e-mail clarification issued by the Corps on August 23, 2001. e. An RCFC 30(b)(6) witness on the topic of Tetra Tech's computation of damages. 9. During the April 13, 2007 teleconference Mr. Banfield advised me that Tetra Tech

intended to take the following depositions: a. b. Dr. John Potter. Ms. Lydia Tadesse. -2-

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c.

An RCFC 30(b)(6) witness on the topic of the basis for the Government's assumption of 40 anomalies per acre.

d.

An RCFC 30(b)(6) witness on the topic of the Government's database of unexploded ordinance ("UXO") and UXO-like items.

10.

Counsel tentatively scheduled the above-referenced depositions to take place

between April 19 and April 30. 11. During the April 13, 2007 teleconference, I advised Mr. Banfield that I was

assigned to the Ravens Group bid protest, which might disrupt the deposition schedule. 12. The Ravens Group did not file its bid protest complaint and motion for a

preliminary injunction until April 19, 2007. Ravens Group, Inc. v. United States, No. 07-243 (Fed. Cl.). 13. In my experience, it is extraordinary for a bid protester to file its bid protest

complaint more than one or two days after filing its pre-filing notification. Typically, the bid protest complaint is filed one day after the pre-filing notice. 14. Promptly after receiving the Ravens Group complaint on the morning of April 19,

2007, I advised Mr. Banfield by e-mail that a motion to enlarge the discovery period in this case would probably be necessary as a result of the delayed filing in Ravens Group. 15. The Court held a preliminary status conference in Ravens Group on the afternoon

of April 20, 2007. A copy of the Court's post-conference scheduling order is attached hereto as Exhibit 1.

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16.

Promptly after the April 20, 2007 status conference in Ravens Group, I advised

Mr. Banfield that I would not be able to travel for depositions during the week of April 23, and that I would file a motion for an enlargement of time in this case as soon as possible. 17. Had it not been for the extraordinary one-week delay between the filing of the pre-

filing notification in Ravens Group on April 12, 2007 and the filing of the complaint on April 19, 2007, I would have been able to complete the taking of depositions in this case by April 30 as originally scheduled. I declare under penalty of perjury that the foregoing is true and correct.

Date: April 30, 2007

s/ Roger A. Hipp Roger A. Hipp

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day or May, 2007, a copy of the foregoing "DEFENDANT'S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR AN ENLARGEMENT OF TIME" 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

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