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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FISHERMAN'S HARVEST, INC., et al., § § Plaintiffs, § § v. § § THE UNITED STATES, § § Defendant, § § v. § § WEEKS MARINE, INC., § § Intervenor-Defendant. §

NO. 05 -840 C and NO. 05-1044 C (CONSOLIDATED) (Chief Judge Damich)

PLAINTIFFS' RESPONSE TO DEFENDANT, THE UNITED STATES', MOTION FOR PROTECTIVE ORDER Come now, FISHERMAN'S HARVEST, INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO, and VICKIE JO NELSON SALAZAR, Plaintiffs herein, and make and file Plaintiffs' Response to Defendant's Motion for Protective Order and would respectfully show unto the Court the following: I. INTRODUCTION 1. Plaintiffs' counsel has sent numerous letters to counsel for The United States in an

attempt to schedule depositions at a mutually convenient time, as well as offering up the Plaintiffs' availability to be deposed without having to have been prompted to do so. See Exhibits "A - D" attached. 2. In each instance that the Court has set deadlines in this matter, whether by a scheduling

order or by decree, Plaintiffs have complied with each and every one. In light of the Court's Opinion and Order entered on November 28, 2006, the Plaintiffs are attempting to move this

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case forward by scheduling discovery depositions, but are being prevented from doing so because of the actions of the Defendant, The United States. 3. On or about March 3, 2006, and prior to the issuance on March 8, 2006 of the notices of

deposition for witnesses Carolyn Murphy and James Few, counsel for The United States, David D'Alessandris, agreed to produce the deponents Carolyn Murphy and James Few. Thereafter, Plaintiffs' noticed the depositions of Murphy and Few pursuant to the agreement between Plaintiffs and The United States as to when and where the depositions would occur. (Murphy's on March 29, 2006, Few's on March 30, 2006 at the United States Army Corps of Engineers, Galveston, Texas). 4. Counsel for The United States agreed to produce Murphy and Few. After the agreement

was made between Plaintiffs' counsel and counsel for The United States, schedules were arranged and accommodations made to attend these depositions by the various counsel for Plaintiffs. 5. Counsel for The United States, with less than seven (7) days prior to the date the

depositions were scheduled for by agreement and with notices properly issued, sought a protective order from his agreement with Plaintiffs' counsel, citing reasons that he knew or should have known at the time the agreements were reached regarding those depositions. II. ARGUMENT 6. Plaintiffs all agree that "this Court possesses inherent power to regulate discovery." See,

e.g., Americold Corp. v. United States, 28 Fed. Cl. 747 (1993). 7. The Plaintiffs are, indeed, opposed to any further delay of this matter, in light of the

months long delay that they have already endured. Plaintiffs would request that The United

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States be ordered and/or required to attend the depositions that have been scheduled so that this case can move forward to a prompt resolution without any further delay. 8. Thus, Plaintiffs would urge this Court to deny the protective order sought by The United

States and order the depositions of the Plaintiffs, to be held January 10-12, 2006, as well as the depositions of J.M. Fail and Keith Latiolais, to be held on January 17, 2006, proceed as scheduled in Houston, Texas and Lafayette, Louisiana, respectively. 9. Further, Plaintiffs would ask this Honorable Court that The United States, at a minimum,

provide available dates for the following witnesses' depositions: 1) Carolyn Murphy; and 2) James Few. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Fisherman's Harvest, Inc., C. Joe Nelson, Jr., Doris Mae Nelson, Vanessa Jo Nelson Vallejo and Vickie Jo Nelson Salazar, pray for the Court to enter an order denying the Defendant, The United States', Motion for Protective Order and order that Plaintiffs be allowed to take the depositions agreed to and scheduled for January 10-12, 2006 (all Plaintiffs') and for January 17, 2006 (Fail & Latiolais), and for such other and further relief that may be awarded at law or in equity. Respectfully submitted,

By:

s/ David E. Bernsen
DAVID ERIC BERNSEN Southern District of Texas Bar No. 83425 Texas State Bar No. 02217500 LAW OFFICE OF DAVID E. BERNSEN, P.C. Post Office Box 822 Beaumont, Texas 77704 (409) 832-1957 (409) 832-2211 [FACSIMILE] [email protected]

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ATTORNEY FOR PLAINTIFFS FISHERMAN'S HARVEST, INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO AND VICKIE JO NELSON SALAZAR AND A. MARK FAGGARD Texas State Bar No. 06772000 A. MARK FAGGARD, P.C. 550 Fannin Street, Suite 1141 Beaumont, Texas 77701 (409) 835-4300 (409) 835-4335 [FACSIMILE] [email protected] OF COUNSEL TO ATTORNEY FOR PLAINTIFFS FISHERMAN'S HARVEST, INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO AND VICKIE JO NELSON SALAZAR

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing instrument has been filed electronically in accordance with the rules of this Court on this the 5th day of January, 2007.

s/ David E. Bernsen
DAVID E. BERNSEN E-mail: [email protected] David F. D'Alessandris ATTORNEY FOR DEFENDANT THE UNITED STATES Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor
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1100 L Street, N.W. Washington, D.C. 20530 TEL: (202) 307-1011 FAX: (202) 514-8624 P. Alex Petty Ana-Valli Gordon OF COUNSEL TO ATTORNEY FOR DEFENDANT THE UNITED STATES Assistant District Counsel United States Army Corps of Engineers Galveston District 2000 Fort Point Road Galveston, Texas 77550 Kenneth G. Engerrand ATTORNEY FOR INTERVENOR DEFENDANT WEEKS MARINE, INC. Brown Sims, P.C. 1177 West Loop South, Tenth Floor Houston, Texas 77027-9007 Phone: (713) 629-1580 Fax: (713) 629-5027 Allen D. Hemphill OF COUNSEL TO ATTORNEY FOR INTERVENOR DEFENDANT WEEKS MARINE, INC. Brown Sims, P.C. 1177 West Loop South, Tenth Floor Houston, Texas 77027-9007 Phone: (713) 629-1580 Fax: (713) 629-5027 Paul O'Finan ATTORNEY FOR PLAINTIFFS CHILDRESS SEAFOOD, INC., W. F. CHILDRESS AND ALTON LEE KELLY 9597 Jones Road, #317 Houston, Texas 77065 Phone: (713) 202-1776 Fax: (713) 683-1783 E-Mail: [email protected] 5

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Shannon T. Nash OF COUNSEL TO ATTORNEY FOR PLAINTIFFS CHILDRESS SEAFOOD, INC., W. F. CHILDRESS AND ALTON LEE KELLY TOLLESON & NASH 26510 Keith Street Spring, Texas 77373 TEL: (281) 350-3900 FAX: (281) 350-9977 AND A. Mark Faggard Texas State Bar No. 06772000 A. MARK FAGGARD, P.C. 550 Fannin Street, Suite 1141 Beaumont, Texas 77701 (409) 835-4300 (409) 835-4335 [FACSIMILE] [email protected] OF COUNSEL TO ATTORNEY OF RECORD FOR ALTON LEE KELLY

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