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

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Appendix to Plaintiffs' Response To Defendant's Second Motion For Enlargement Of Time For Defendant To Complete Discovery

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INDEX TO APPENDIX DOCUMENTS Plaintiffs' Reply In Support Of Their Motion To Join Additional Party Plaintiffs And For Leave To File An Amended Complaint Plaintiffs' Appendix Declaration of Kevin S. Willen............................................................................................. (iii) E-mail, dated March 1, 2007, from S. Floyd to K. Willen .................................. Pls.' App. 001 Defendant's Second Request for Production of Documents...................... Pls.' App. 002 ­ 007 Notice of Deposition Pursuant to RCFC 30(b)(6) to Skunk Hollow Farm, Inc.................................................................. Pls.' App. 008 ­ 011 E-mail, dated August 15, 2007, from K. Willen to R. Chandler ............... Pls.' App. 012 ­ 014 E-mail, dated August 26, 2007, from R. Chandler to K. Willen ......................... Pls.' App. 015 Letter, dated September 7, 2007, from K. Willen to R. Chandler ............. Pls.' App. 016 ­ 018 Letter, dated September 10, 2007, from K. Willen to R. Chandler, enclosing Plaintiffs' Objections and Responses to Defendant's Second Request for Production of Documents............................................................... Pls.' App. 019 ­ 033 E-mail chain, dated September 13, 2007, between J. Abram and R. Chandler ... Pls.' App. 034 E-mail, dated September 14, 2007, from R. Chandler to J. Abram & Subpoena to Skunk Hollow Farm, Inc............................................. Pls.' App. 035 ­ 043 E-mail, dated September 14, 2007, from J. Abram to R. Chandler ........... Pls.' App. 044 ­ 045 Letter, dated September 20, 2007, from K. Willen to R. Chandler ..................... Pls.' App. 046 E-mail chain, dated October 2-3, 2007, between K. Willen and R. Chandler ............................................................................................. Pls.' App. 047 E-mail chain, dated October 10-12, 2007, between K. Willen and R. Chandler ............................................................................................. Pls.' App. 048 Letter, dated October 12, 2007, from R. Chandler to K. Willen .............. Pls.' App. 049 ­ 052 E-mail chain, dated October 18-November 1, 2007, between K. Willen and R. Chandler ................................................................................... Pls.' App. 053 ­ 057

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E-mail, dated October 26, 2007, from R. Chandler to K. Willen ........................ Pls.' App. 058 Letter, dated October 29, 2007, from K. Willen to R. Chandler ......................... Pls.' App. 059 E-mail, dated November 5, 2007, from R. Chandler to K. Willen ...................... Pls.' App. 060 Defendant's Interrogatories in Lieu of Deposition of Skunk Hollow Farm, Inc. Regarding Topics 2, 3, and 4 of the Notice of the Deposition Pursuant to Rule 30(b)(6) dated September 13, 2007.......................... Pls.' App. 061 ­ 073 E-mail, dated November 15, 2007, from S. Floyd to K. Willen.......................... Pls.' App. 074 E-mail chain, dated November 16, 2007, between K. Willen and R. Chandler ................................................................................... Pls.' App. 075 ­ 076 E-mail & Letter, dated November 21, 2007, from K. Willen to R. Chandler ...................................................................................... Pls.' App. 077 ­ 079

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Plaintiffs' Reply In Support Of Their Motion To Join Additional Party Plaintiffs And For Leave To File An Amended Complaint

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No. 05-776C (Judge Sweeney)

____________________________________________________________________________________________________________________________________________________________

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTION TO JOIN ADDITIONAL PARTY PLAINTIFFS AND FOR LEAVE TO FILE AN AMENDED COMPLAINT
____________________________________________________________________________________________________________________________________________________________

By: s/ Jonathan L. Abram Jonathan L. Abram HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace, and Houghton Freeman

OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (direct) (202) 637-5910 (facsimile)

Dated: December 10, 2007

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TABLE OF CONTENTS Page(s) PLAINTIFFS' ARGUMENT ..........................................................................................................2 I. Factual Corrections.................................................................................................................5 CONCLUSION..............................................................................................................................10

INDEX TO APPENDIX ...............................................................................................................(i) Declaration of Kevin S. Willen........................................................................................... (iv) ­ (v) E-mail, dated March 1, 2007, from S. Floyd to K. Willen ........................................ Pls.' App. 001 Defendant's Second Request for Production of Documents............................ Pls.' App. 002 ­ 007 Notice of Deposition Pursuant to RCFC 30(b)(6) to Skunk Hollow Farm, Inc........................................................................ Pls.' App. 008 ­ 011 E-mail, dated August 15, 2007, from K. Willen to R. Chandler ..................... Pls.' App. 012 ­ 014 E-mail, dated August 26, 2007, from R. Chandler to K. Willen ............................... Pls.' App. 015 Letter, dated September 7, 2007, from K. Willen to R. Chandler ................... Pls.' App. 016 ­ 018 Letter, dated September 10, 2007, from K. Willen to R. Chandler, enclosing Plaintiffs' Objections and Responses to Defendant's Second Request for Production of Documents..................................................................... Pls.' App. 019 ­ 033 E-mail chain, dated September 13, 2007, between J. Abram and R. Chandler ......... Pls.' App. 034 E-mail, dated September 14, 2007, from R. Chandler to J. Abram & Subpoena to Skunk Hollow Farm, Inc................................................... Pls.' App. 035 ­ 043 E-mail, dated September 14, 2007, from J. Abram to R. Chandler ................. Pls.' App. 044 ­ 045 Letter, dated September 20, 2007, from K. Willen to R. Chandler ........................... Pls.' App. 046 E-mail chain, dated October 2-3, 2007, between K. Willen and R. Chandler ................................................................................................... Pls.' App. 047

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E-mail chain, dated October 10-12, 2007, between K. Willen and R. Chandler ................................................................................................... Pls.' App. 048 Letter, dated October 12, 2007, from R. Chandler to K. Willen .................... Pls.' App. 049 ­ 052 E-mail chain, dated October 18-November 1, 2007, between K. Willen and R. Chandler ......................................................................................... Pls.' App. 053 ­ 057 E-mail, dated October 26, 2007, from R. Chandler to K. Willen .............................. Pls.' App. 058 Letter, dated October 29, 2007, from K. Willen to R. Chandler ............................... Pls.' App. 059 E-mail, dated November 5, 2007, from R. Chandler to K. Willen ............................ Pls.' App. 060 Defendant's Interrogatories in Lieu of Deposition of Skunk Hollow Farm, Inc. Regarding Topics 2, 3, and 4 of the Notice of the Deposition Pursuant to Rule 30(b)(6) dated September 13, 2007................................ Pls.' App. 061 ­ 073 E-mail, dated November 15, 2007, from S. Floyd to K. Willen................................ Pls.' App. 074 E-mail chain, dated November 16, 2007, between K. Willen and R. Chandler ......................................................................................... Pls.' App. 075 ­ 076 E-mail & Letter, dated November 21, 2007, from K. Willen to R. Chandler ............................................................................................ Pls.' App. 077 ­ 079

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TABLE OF AUTHORITIES CASES: Hay & Forage Indus. V. Ford New Holland, Inc., 132 F.R.D. 687, 691 (D. Kan. 1990) ..........................................................................................................................5 Salter v. McNesby, No. 3:06cv110/MCR/EMT, 2007 WL 221392, at *2 (N.D. Fla. Jan. 25, 2007)............................................................................................................5

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In its Response to plaintiffs' Motion to Join Additional Party Plaintiffs and For Leave to File an Amended Complaint,1 the Government does not oppose plaintiffs' request to join Doreen Freeman, Skunk Hollow Farm, Inc. ("SHF"), and the Freeman Family LLC ("FFLLC") as plaintiffs to this case and to allow plaintiffs to file their proposed Amended Complaint. Indeed, the Government specifically concedes it "does not dispute the fact that Doreen Freeman, [SHF] and FFLLC should be joined as plaintiffs in this action." (Def.'s Resp. at 1.) The Government does contend, however, that it will be "prejudiced" if it is not provided another extension of time until February 29, 2008,2 to complete discovery. Initially, plaintiffs intended to oppose this request. During the recent deposition of Ag-Innovations, Inc. on December 6, 2007, however, counsel for plaintiffs learned for the first time of the existence of additional documents in Ag-Innovations, Inc.'s possession that are responsive to a Government document request. As a result, plaintiffs are willing to consent to the Government's request to extend discovery to February 29, 2008.3 Nevertheless, plaintiffs file this reply because the Government has not consented to plaintiffs' joinder of additional parties, despite notification of

1

Plaintiffs will refer to the Government's Response to Plaintiffs' Motion to Join Additional Party Plaintiffs and for Leave to File an Amended Complaint as "Defendant's Response" or "Response" and will cite it as "Def.'s Resp. at __." In its Response, the Government does not specifically identify how much more time it requires for discovery. On the same day it filed its Response, the Government also filed a "Second" Motion for Enlargement of Time for Defendant to Complete Discovery (hereinafter "Current Discovery Extension Motion") in which it seeks another 78 days of discovery.

2

Plaintiffs also note that their Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee(s) on Certain Topics, filed on August 16, 2007, remains pending before the Court. (Docket entry #48.) If the Court were to grant plaintiffs' crossmotion, plaintiffs may require additional time to complete discovery.

3

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plaintiffs' position. Additionally, plaintiffs wish to correct the numerous false and inappropriate statements and mischaracterizations asserted by the Government. ARGUMENT Now that plaintiffs have consented to yet another extension of the discovery period, the Government no longer can claim prejudice by the joinder of the additional parties. Nor could it even without plaintiffs' consent. The Government admits that "the underlying factual allegations will not change as a result of the late addition of the three new plaintiffs." (Def.'s Resp. at 2.) It does not contest the fact that none of the claims asserted against the Government will change. And, it acknowledges that "SHF owned the sheep and the genetic material at the time of their seizure and [that] Mr. Freeman transferred title of Skunk Hollow Farm to FFLLC in 2003, while the quarantine placed upon a portion of the farm was pending." (Def.'s Resp. at 1.) In fact, the Government asserts "prejudice" without any support for that contention. The fallacy underlying the Government's factual assertions is that many of them are regurgitations of the same points it asserted back in September 2007 when it filed its previous Motion for an Enlargement of Time for Defendant to Complete Discovery (hereinafter "Previous Discovery Extension Motion"). (See docket entry #53, at 10.) In that motion, the Government requested an extra ninety days for discovery on the ground that it had learned of the existence of the proposed new party plaintiffs in July 2007 (Docket entry #53, at 7-10.) and needed additional time to take discovery from these parties. (Id. at 4, 7-10.) The Court granted the Government's motion on September 14, 2007, allowing the Government until December 13, 2007, to complete discovery. (Docket entry #54.)

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Even before the filing of its Previous Discovery Extension Motion, discovery relating to these proposed new parties was underway. And more discovery has since occurred. But during this extended period, the Government has failed to pursue in a timely, diligent, and efficient manner the discovery on which it premised that previous discovery motion. This failure is the true reason underlying the Government's request for more time to complete discovery. As one example, the Government claims it needs an opportunity to "re-evaluate the potentially significant implications" arising from SHF's ownership of the sheep and genetic material and Mr. Freeman's transfer of the real property known as Skunk Hollow Farm to FFLLC. (Def.'s Resp. at 7.) But despite having knowledge about these parties for almost five months and having already obtained a significant amount of discovery about them, the Government fails to cite any support for this proposition. It has had ample opportunity to conduct the necessary discovery to know what, if any, "significant implications" will arise from the addition of these new parties, but it has proffered none here.4 Instead of supporting its claim of "prejudice," the Government attempts to shift attention away from its own delinquency and foot-dragging by casting aspersions on plaintiffs and their counsel through allegations of inappropriate conduct. Specifically, the Government falsely
4

Another example of the Government's own delinquency is its pursuit of a second deposition of Ag-Innovations, Inc. As plaintiffs chronicled in their Response to Defendant's Motion for an Enlargement of Time for Defendant to Complete Discovery, Linda and Dr. Larry Faillace were deposed on March 6-7, 2007, respectively. (Docket entry #55, at 4-6.) Dr. and Mrs. Faillace also were designated to testify on behalf of their company, Ag-Innovations, Inc. Based on plaintiffs' production of certain documents after these depositions, the Government, in its Previous Discovery Extension Motion of September 13, stated it required additional time for discovery regarding these parties. (Docket entry #53, at 6-7.) Yet, following extension of the discovery period, the Government did not first raise the issue of re-opening the deposition of AgInnovations, Inc. until November 15, 2007, more than two months after the last discovery

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accuses plaintiffs' counsel of "interfer[ing] with [the Government's] completion of discovery" in three ways: (1) by refusing to accept service of a subpoena on SHF (Def.'s Resp. at 3); (2) by delaying the identification of SHF's 30(b)(6) witnesses and making them available for depositions (see id. at 1); and (3) by delaying the production of documents that were responsive to its second request for production of documents (see id. at 1-2). However, as the following factual history reveals, it is the Government that has failed to take discovery from SHF and its related parties in a timely, diligent, and efficient manner. First, the Government refused to consent to SHF's, Doreen Freeman's, and FFLLC's joinder to the case, which caused the need for a subpoena. Second, when counsel for SHF attempted to streamline the discovery process by suggesting that the parties utilize interrogatories in lieu of depositions on three RCFC 30(b)(6) topics, the Government served what amounted to 308 separate interrogatory questions, which forced the parties to resort back to depositions. And, in several instances the Government waited months before conferring with counsel for plaintiffs regarding outstanding discovery requests to plaintiffs and SHF. Thus, any delay in the Government's ability to complete discovery from plaintiffs and SHF rests on the Government's own shoulders; there was no interference by plaintiffs or their counsel. 1. Service of Subpoena

The Government claims counsel for plaintiffs delayed by not agreeing to accept service of a subpoena. Exactly the opposite is true: counsel for plaintiffs urged the Government to allow joinder so as to obviate any need for subpoena. When the Government refused, we agreed to accept service one day later.

extension, and less than two weeks before filing the Current Discovery Extension Motion. (Pls.'

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On August 10, 2007, the Government issued several discovery requests, including a Second Request for Production of Documents from plaintiffs relating to SHF ("Second RFP") (Pls.' App. at 002-07; and a RCFC 30(b)(6) Notice of Deposition directed to SHF ("SHF RCFC 30(b)(6) Notice") that requested documents and a designee(s) regarding six topics (Pls.' App. at 008-11). Following the SHF RCFC 30(b)(6) Notice, counsel for plaintiffs on August 15, 2007, requested the Government's consent to join SHF, Doreen Freeman, and the FFLLC as party plaintiffs to the case. (Pls.' App. at 012-14.) We requested a response to their request by August 20, 2007. (See id.) Given that none of the underlying factual matters or claims would change ­ which the Government now acknowledges (Def.'s Resp. at 2) ­ counsel for plaintiffs did not expect the Government to stall in its response. Ultimately, it did not consent to the joinder of the new plaintiffs. This refusal placed SHF in the position of having to litigate as a non-party. See Salter v. McNesby, No. 3:06cv110/MCR/EMT, 2007 WL 221392, at *2 (N.D. Fla. Jan. 25, 2007) ("Although [Federal] Rule 30(b)(6) can be used to require a nonparty organization to designate a person to testify for it, a subpoena is required . . . .") (quoting 8A Charles Alan Wright, et al., Federal Practice & Procedure § 2103 (2d ed. 2007)); see also Hay & Forage Indus. v. Ford New Holland, Inc., 132 F.R.D. 687, 691 (D. Kan. 1990) ("A deposition notice without a subpoena is not the proper procedure to depose a non-party."). We again urged the Government to streamline the process by consenting to SHF's joinder and avoid the need for a subpoena. (Pls.' App. at 016-18.) The Government elected not to consent and instead notified counsel for plaintiffs on September 13, 2007, the day before the previous close of discovery, that it intended to serve SHF

App. at 074.)

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with a subpoena. (Pls.' App. at 034.) Counsel for plaintiffs requested a telephone conference to discuss why a subpoena was being issued so close to the end of the discovery period (see id.), and inquired whether it was necessary in light of plaintiffs' intention to add SHF as a party. The Government insisted on issuing the subpoena; the very next day, counsel for plaintiffs accepted service of the subpoena on behalf of SHF.5 (Pls.' App. at 044-45.) All of these events occurred prior to the Court's Order of September 14, 2007, extending the discovery period to December 13, 2007. (See docket entry #54.) 2. SHF Designees

The Government also complains that plaintiffs and their counsel delayed in the identification of SHF's 30(b)(6) designees and making them available for deposition. This assertion is simply untrue. In response to the six-topic RCFC 30(b)(6) subpoena served on SHF (hereinafter "SHF RCFC 30(b)(6) Subpoena") on September 14, 2007 (see Pls.' App. at 046), plaintiffs attempted to streamline the discovery process by requesting the Government use interrogatories in lieu of depositions for three topics, contingent on an agreement as to the number of interrogatories that would be utilized. Instead of responding, the Government ­ one month later ­ served what amounted to 308 separate interrogatory questions, demanding a fourteen day response. As a result of these unreasonable demands, plaintiffs were required to resort back to the use of depositions and thereafter promptly disclosed their designee(s).

The Government's allegation that counsel for plaintiffs "refused to accept service of a subpoena on behalf of [SHF]" (see Current Motion to Extend Discovery at 3) is contradicted by Mr. Chandler's own words. In his service e-mail to Mr. Abram, Mr. Chandler explicitly recognized that Mr. Abram agreed to "accept service on behalf of [SHF] and that service by email (with a copy to Mr. Amidon) followed by a copy of the subpoena sent via U.S. mail is sufficient and will be effective." (Pls.' App. at 035-43.)

5

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Following service of the SHF RCFC 30(b)(6) Subpoena, the parties had three meet and confers regarding the topics identified therein during mid-September and the first two weeks in October 2007. (See Pls.' App. at 47, 48.6) Thereafter, Mr. Chandler sent a letter dated October 12, 2007, to counsel for plaintiffs stating the Government's understanding of the agreements that the parties had reached. (Pls.' App. at 049-52.) On October 15, 2007, counsel for plaintiffs clarified the parties' agreement regarding the use of interrogatories as a mechanism to respond to Topics ##2-4 in lieu of depositions for the SHF RCFC 30(b)(6) Subpoena: [W]e agreed to respond to the Topic #2, as well as Topics ##3 and 4, through interrogatories, consistent with the terms stated in your letter. However, as I indicated during our telephone conference last week, that agreement is contingent upon an understanding of the number of interrogatories that the Government intends to serve for these topics. Although SHF anticipates that the Government may require more than one interrogatory per topic, it expects that the Government will not need to propound more than ten interrogatories in total. (See id. at 2 (emphasis added).) Instead of responding to plaintiffs' October 15 letter, the Government waited one month ­ until November 14, 2007 ­ and served its interrogatories. (Pls.' App. at 061-73.) Although the Government facially submitted four interrogatories, each one contained numerous subparts covering a span of eight to twelve years for each subpart, totaling at least 308 separate interrogatory questions. (See id.) This large number of interrogatories, including subparts and scope, was not intended by the agreement that counsel had reached, and the fourteen-day
6

The following is an example of how counsel for plaintiffs were not "foot-dragging" during this process. Upon receiving Mr. Chandler's e-mail and voicemail on October 2, counsel for plaintiffs responded that same day to schedule a meeting. (Pls.' App. at 047.) Mr. Chandler did not respond until the following day, and the parties engaged in a meet and confer. (Id.) On October 10, 2007, counsel for plaintiffs initiated contact with Mr. Chandler to schedule another meeting to continue the parties' discussion. (Pls.' App. at 048.) Mr. Chandler responded two days later, when the parties held another meet and confer. (Id.)

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response time was contingent upon the number of interrogatories served. On November 16, 2007, counsel for plaintiffs informed Mr. Chandler that plaintiffs reasonably needed thirty days to respond to the onerous interrogatories. (Pls.' App. at 075.) Mr. Chandler refused the accommodation, demanding that plaintiffs either respond to the interrogatories by November 30, 2007,7 or designate witnesses in response to Topics ##2-4. (Id.) Forced by the Government's unreasonableness, counsel for plaintiffs indicated that SHF would identify its designees to Topics ##3 and 4 the following week.8 (Id.) We did so.9 (Pls.' App. at 077-79.)

7

Mr. Chandler offered a two day extension due to the Thanksgiving holiday. (Pls.' App. at 075.)

SHF declined to designate a witness for Topic #2. Topic #2 of the SHF RCFC 30(b)(6) Notice requested documents and testimony relating to a topic already provided in response to a previous RCFC 30(b)(6) deposition notice served on plaintiffs on March 1, 2007. This topic regarded "[p]laintiffs' milk and cheese production records for their sheep, including but not limited to: Freeman 00065 to Freeman 00090; and Faillace 00221 to Faillace 00277." (Pls.' App. at 001.) Mr. Frankie Whitten was designated to testify on behalf of Mr. Freeman and did so on March 9, 2007. In Topic #2 of the SHF RCFC 30(b)(6) Notice, the Government seeks "[SHF's] milk and cheese production and profitability, including the cost per pound, revenue per pound and profit (or loss) per pound to the Company resulting from the production of sale of cheese." (Pls.' App. at 008.) As the parties had negotiated, the intended purpose of providing interrogatory responses to Topic #2 related to the limited information the Government claimed it was unable to obtain from the previous RCFC 30(b)(6) deposition of Mr. Whitten. Attempting to circumvent RCFC 30(a)(2)(B), the Government issued interrogatories ##1-2, which sought a vast array of information beyond any that it had initially requested from Mr. Whitten in the prior RCFC 30(b)(6) notice. (See Pls.' App. at 068-69.) Plaintiffs wanted to be accommodating, but given the breadth of new information sought by the Government, plaintiffs did not agree to respond to the interrogatories or re-produce Mr. Whitten a second time. (See Pls.' App. at 07576.)
9

8

The Government also suggests that counsel for plaintiffs delayed in scheduling the deposition of SHF's designee(s) in response to Topic #1. (See Def.'s Resp. at 5.) This assertion too is a misrepresentation. First, the parties had agreed in September that designees would be scheduled at the conclusion of the parties' negotiations for each topic. (See Pls.' App. at 46.) Second, both parties' attorneys were attempting to schedule these depositions so that they both would occur during one trip to Vermont. On October 18, 2007, counsel for plaintiffs informed Mr. Chandler that both witnesses were available November 15-16, but not other dates that Mr.

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3.

Production of Documents

Finally, the Government claims that plaintiffs and their counsel delayed in the production of documents responsive to the Government's Second RFP. However, it was the Government that delayed one month in responding to plaintiffs' request for a meet and confer regarding their objections to those document requests. On September 7, 2007, in the same letter regarding the need for a subpoena on SHF, counsel for plaintiffs identified numerous objections to the Government's Second RFP. (Pls.' App. at 016-18.) Plaintiffs, thereafter, requested a meet and confer regarding these objections. (Id.) Plaintiffs served their objections and responses to the Government's Second RFP on September 10, 2007, again requesting a meet and confer. (Pls'. App. at 019-33.) However, the Government did not respond to this request until almost one month later, October 2, 2007. (Pls.' App. at 047.) On October 12, 2007, once plaintiffs' objections were sufficiently resolved to enable us to identify and produce documents, the Government allotted plaintiffs until October

Chandler had initially proposed due to one of the designees' travel schedule. (Pls.' App. at 057.) When Mr. Chandler failed to respond to that e-mail, counsel for plaintiffs sent a follow-up e-mail on October 22, 2007, asking Mr. Chandler to confirm the proposed deposition schedule. (Pls.' App. at 056.) On October 22, Mr. Chandler indicated the Government was no longer available on November 15-16, and proposed that the deposition occur over the Thanksgiving holiday. (Id.) Mr. Chandler, thereafter, proposed November 19-20, which also fell over the Thanksgiving holiday week, and counsel for plaintiffs asked for additional dates on an alternative week. (Pls.' App. at 055.) Two days went by without a response from Mr. Chandler; so on October 24, counsel for plaintiffs again followed up with Mr. Chandler. (Id.) In his response a day later, Mr. Chandler suggested that the parties split up the deposition so that each deponent would be deposed during separate trips. (Pls.' App. at 054.) Following that decision, the depositions were easily scheduled. (Pls.' App. at 053-54.) One of the depositions was rescheduled when counsel for plaintiffs had a personal emergency that prevented him from attending the deposition on the date originally scheduled. (Pls.' App. at 058.) Both of these designees have now been deposed.

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26, 2007, to produce documents. (Pls.' App. at 050.) Following a one day extension by the Government (Pls.' App. 058), plaintiffs produced their documents (Pls.' App. 059). CONCLUSION The Government's claim of prejudice is no longer viable as plaintiffs have agreed to extend discovery until February 29, 2008. In addition, as the above factual recitation shows, neither plaintiffs nor their counsel interfered with any discovery. The Government's inability to complete its discovery during the additional three months resulted from its own untimely, delinquent, and inefficient methods. For these reasons and the reasons asserted in their opening motion, plaintiffs respectfully request that their Motion to Join Additional Party Plaintiffs and For Leave to File an Amended Complaint be granted; that SHF, FFLLC, and Doreen Freeman be added as parties to this action; and that plaintiffs be granted leave to file their proposed Amended Complaint. Respectfully submitted,

By:

s/ Jonathan L. Abram Jonathan L. Abram

OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (202) 637-5910 (facsimile) Dated: December 10, 2007

HOGAN & HARTSON, LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace and Houghton Freeman

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CERTIFICATE OF FILING The undersigned certifies under penalty of perjury that on this 10th day of December, 2007, I caused a true and correct copy of the foregoing Plaintiffs' Reply in Support of Their Motion to Join Additional Party Plaintiffs and for Leave to File an Amended Complaint, along with the attached appendix, to be filed with the Court and to be served via the Court's electronic filing system on the following: Sheryl L. Floyd, Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, DC 20530

By:

s/ Kevin S. Willen Kevin S. Willen

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 05-776C (Judge Sweeney)

DECLARATION OF KEVIN S. WILLEN I, Kevin S. Willen, declare as follows: 1. I am over twenty-one years of age and, if called to testify, would competently testify to

the matters set forth herein. 2. I am an attorney employed by Hogan & Hartson, L.L.P., counsel to Ag-Innovations, Inc.,

Larry Faillace, Linda Faillace, and Houghton Freeman, in the above-captioned action. 3. Following this declaration is Plaintiffs' Appendix, which contains true and correct copies

of the following documents: E-mail, dated March 1, 2007, from S. Floyd to K. Willen Defendant's Second Request for Production of Documents Notice of Deposition Pursuant to RCFC 30(b)(6) to Skunk Hollow Farm, Inc. E-mail, dated August 15, 2007, from K. Willen to R. Chandler E-mail, dated August 26, 2007, from R. Chandler to K. Willen Letter, dated September 7, 2007, from K. Willen to R. Chandler Letter, dated September 10, 2007, from K. Willen to R. Chandler, enclosing Plaintiffs' Objections and Responses to Defendant's Second Request (iv)
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for Production of Documents E-mail chain, dated September 13, 2007, between J. Abram and R. Chandler E-mail, dated September 14, 2007, from R. Chandler to J. Abram & Subpoena to Skunk Hollow Farm, Inc. E-mail, dated September 14, 2007, from J. Abram to R. Chandler Letter, dated September 20, 2007, from K. Willen to R. Chandler E-mail chain, dated October 2-3, 2007, between K. Willen and R. Chandler E-mail chain, dated October 10-12, 2007, between K. Willen and R. Chandler Letter, dated October 12, 2007, from R. Chandler to K. Willen E-mail chain, dated October 18-November 1, 2007, between K. Willen and R. Chandler E-mail, dated October 26, 2007, from R. Chandler to K. Willen Letter, dated October 29, 2007, from K. Willen to R. Chandler E-mail, dated November 5, 2007, from R. Chandler to K. Willen Defendant's Interrogatories in Lieu of Deposition of Skunk Hollow Farm, Inc. Regarding Topics 2, 3, and 4 of the Notice of the Deposition Pursuant to Rule 30(b)(6) dated September 13, 2007 E-mail, dated November 15, 2007, from S. Floyd to K. Willen E-mail chain, dated November 16, 2007, between K. Willen and R. Chandler E-mail & Letter, dated November 21, 2007, from K. Willen to R. Chandler 4. I make this Declaration under penalties of perjury pursuant to 28 U.S.C. § 1746, and I

state that the facts set forth are true. s/ Kevin S. Willen Kevin S. Willen Dated: December 10, 2007

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(v)

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