Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C JORGE A. DELPIN APONTE, et al., v. UNITED STATES OF AMERICA

URGENT MOTION FOR PROTECTIVE ORDER AND FOR LEAVE TO RE-SCHEDULE THE TAKING OF DEFENDANT'S DEPOSITION BEFORE THE HONORABLE COURT: COMES NOW plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: 1. During a Status Conference held by telephone conference on December 13, 2008, the parties agreed that plaintiffs would depose Defendant on January 25, 2008, Friday of this week. Also discussed at the Court's initiative, was the option for plaintiffs to conduct further written discovery as follows: "[W]hile it is likely that all other forms of discovery which the plaintiffs would find reasonably necessary have already been conducted, the Court will place a deadline of December 28, 2007 for the service of any additional written discovery relating to the subjects permitted in the June 12, 2007." 2. When the Court presented the subject of further written

discovery by plaintiffs, Defendant's only concern was that plaintiffs would present any such request with sufficient time

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prior to the deposition, hence granting Defendant sufficient time to respond before the deposition. 3. In response to this statement by Defendant, plaintiffs

suggested the date of December 28, 2007 as a deadline for the presentation of any such written requests to Defendant. If I

recall correctly, the Court then asked Defendant if this date was acceptable and Defendant manifested its agreement. Court then incorporated this date into its order on The this

regards. 4. While preparing for the deposition, plaintiffs decided to

request from Defendant the production of certain categories of documents pertaining the issue at hand. Accordingly, on

December 28, 2007, plaintiffs timely presented Defendant with a request for production of documents, a copy of which is annexed hereto as exhibit to this motion. 5. Please note that plaintiffs only presented to Defendant 7

succinct and specific requests. 6. Within the requests, plaintiffs included the following

statement: With reference to documents herein requested, shall be construed to mean actually delivering legible copies of such documents and/or the electronic file as further described in the applicable requests, within fifteen (15) days after the receipt of these request for the production of documents, in order for these documents to be available for the taking of deposition scheduled for January 25, 2008.

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7. Plaintiffs did not discuss the 15 days term with Defendant's counsel, but within the following days after the requests were served upon Defendant no response, objection or commentary was received from Defendant on this or any other regards. The 15

days term expired on Monday, January 14, 2008, ten days prior to the taking of Defendant's deposition. 8. On or about January 15 or 16, 2008, undersigning counsel sent an e-mail message to counsel for Defendant inquiring about the Defendant's response. Counsel for Defendant returned my phone

call on January 17, 2008, and we held various conversations on the subject during the course of the 17th and the 18th of January, 2008. 9. As of the date of this motion, Defendant has not produced a written response to the requests, which means that plaintiffs do not have an understanding of the official position assumed by Defendant regarding each of the requests presented on

December 28, 2007. 10. Defendant has verbally and through e-mails announced that

there are over 1,500 pages of documents responsive to the requests. As of the time of this motion, perhaps because

yesterday was an official holiday, we have not received a CD offered by Defendant apparently containing the bulk of the documents to be produced. Some documents were advanced by e-

mail on or about January 18, 2008. 3

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11.

On

Friday,

January

18,

2007,

plaintiffs

presented

to

Defendant a verbal request to postpone the deposition for two or three weeks at the most to allow plaintiffs sufficient time to receive all the documents, receive Defendant's official response to the requests, and to review the documents and complete the preparation for the deposition. In order to

qualm any concerns Defendant may have had because of this proposed change in schedule, plaintiffs agreed to withhold the filing of any objections, controversies or motion to compel discovery arising out of Defendant's response--which we do not have--until the deposition is taken. 12. In this regards, our only requests were: (1) deliver any

documents you are willing to produce during the course of this week (January 20-25) in order to have enough time to review them and prepare for the deposition; and (2) include in your production certain Excel spreadsheets we have requested on numerous occasions.1 13. We never got a firm response on either of these conditions,

but we did receive a response to our request for re-scheduling the deposition. The response was: "We will oppose any motion

you file on this subject."

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These Excel spreadsheets have within them certain "embedded formulas" of interest to plaintiffs. To date, the Postal Service has objected the production of any such Excel worksheets and plaintiffs are not privy to the information contained within them, but understand that they are pertinent to the issue at hand.

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14.

The Court authorized the written discovery and established The date agreed upon

a deadline with Defendant's agreement.

by the parties was selected with the target of getting any discovery completed by the time of the deposition. fully complied with this deadline. 15. The requests plaintiffs presented to Defendant are narrow, Plaintiffs

succinct and directly related to the issue subject of the deposition. expected and Defendant was also under notice that plaintiffs needed these documents for the deposition

scheduled for January 25, 2008. 16. As of the time and date of this motion, three days before

the deposition is schedule to begin, the documents and the responses have not been delivered to plaintiffs. 17. Defendant is producing documents in response to the

request, which on itself means that Defendant understands that these documents are pertinent to the issue at hand and to the matters to be covered during the deposition. Accordingly, it

makes complete sense that plaintiffs have the opportunity to receive, review and use these documents for the deposition of Defendant as needed. 18. Assuming for a moment that the deposition is taken without

the benefit of these documents, or without the benefit of reviewing them with sufficient time, or without having the

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opportunity

to

challenge

any

of

the

responses

and/or

objections, plaintiffs could very well face the need to: a. Move the Court to schedule a new deposition; b. Have to incur the expenses of counsel, expert witness and clients travelling to Washington DC to continue the

deposition; and, c. The further delay it could result in having to perform these steps at a later time. 19. These would also result in additional expenses to the

Court, since the process will take filing and resolution of motions, and perhaps additional conferences which can

otherwise be avoided. 20. Plaintiffs the have acted timely upon and actively the in accordance and with

with

calendar

agreed

with

Court

Defendant. 21. The Defendant has acknowledged that it has in its

possession documents responsive to the requests for production of documents and to the issue subject of the deposition. They

have also announced that they will be presenting objections to some of the requests, including an objection to a request for certain key documents, which are the Excel worksheets

identified before. 22. If plaintiffs are compelled to take Defendant's deposition the benefit of these documents and/or without 6

without

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sufficient

time

to

review,

analyze

and

prepare

for

the

deposition, and without handling the objections and any and all pertinent discovery on this issue, Plaintiffs would be prejudiced and perhaps unable to adequately prosecute their case. 23. It is noteworthy, that besides undersigning counsel, the would have to be reviewed and and by is commented the key on by

documents

plaintiffs'

expert as

witness well.

plaintiffs and, simply

representatives

Preparation

stated, there is no sufficient time to prepare between now and Friday, particularly when you bear in mind the travelling time involved in flying to DC at this time of the year. 24. These issues were amply discussed with Defendant's counsel

as stated before, but to no avail, hence making it necessary to file this motion and request the Court's intervention

accordingly. WHERETOFORE, plaintiffs move the Honorable Court to enter orders as follows: a. GRANT leave to re-schedule the taking of Defendant's February 22

deposition for one of the following dates: or 29, or March 7 or 14, 2008.

b. ORDER Defendants to promptly serve upon plaintiffs their response to Plaintiffs' Request for Production of

Documents dated December 28, 2007. 7

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Respectfully submitted, S/ Santiago F. Lampón

SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641 Tel: (787) 273-6767 Fax: (787) 758-3679 Attorney for Plaintiffs January 22, 2008 CERTIFICATE OF SERVICE I hereby certify that on this same date, a copy of the foregoing "Motion for Extension of Time" has been filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. S/ Santiago F. Lampón

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