Free Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 1 of 8

IN THE UNITED STATES COURT OF FEDERAL CLAIMS AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-776C (Judge Sweeney)

DEFENDANT'S SECOND MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO COMPLETE DISCOVERY Pursuant to Rule 6(b) and 6.1 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests an enlargement of time of 78 days, to and including February 29, 2008, within which to complete discovery in this case. The close of discovery is currently scheduled to occur on December 13, 2007. This is our second request for an enlargement of time for this purpose. We have contacted plaintiffs' counsel regarding this request, and he has indicated that plaintiffs will not consent to this request for an enlargement of time. Our need for this additional time to complete discovery is primarily the result of plaintiffs' proposed addition of three new plaintiffs to this lawsuit, Doreen Freeman, Skunk Hollow Farms, Inc. ("SHFI"), and Freeman Family LLC ("FFLLC"). We did not realize until we took the deposition of Mr. Houghton Freeman and some of his accountants in mid-July 2007 that SHFI, not Mr. Freeman, owned the sheep that were seized by the Department of Agriculture ("USDA") and that, in 2003, Mr. Freeman transferred ownership of the Skunk Hollow Farms property that was subject to the USDA quarantine to FFLLC. As a result of this discovery, we propounded document production requests upon SHFI and served a Rule 30(b)(6) deposition

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 2 of 8

notice upon SHFI. Because of foot-dragging on the part of plaintiffs' counsel, there are significant pending discovery requests that remain to be resolved. Accordingly, we do not anticipate that we will be able to complete all of our discovery in this case by the current December 13, 2007 deadline.1 On August 10, 2007, shortly after we learned that SHFI did not own the sheep that were seized at Skunk Hollow Farm and that, in 2003, Mr. Freeman transferred title to Skunk Hollow Farm to FFLLC, we served a document production request and a Rule 30(b)(6) notice of deposition of SHFI upon Hogan & Hartson LLC ("H&H"), the firm that represents the other plaintiffs in this case. Defendant's Appendix ("Def. App.") 18-27. We requested SHFI to produce its designated witnesses for a deposition on September 12, 2007. Def. App. 19. On or about August 15, 2007, H&H informed us that it would soon file a motion to add Doreen Freeman, SHFI, and FFLLC as parties in this matter and requested us to consent to this motion. We requested plaintiffs to provide us with a copy of their draft motion to amend the complaint prior to providing our response to their request to consent.2 On September 7, 2007, counsel for the plaintiffs, Mr. Kevin Willen, objected that the

The parties have tentatively agreed to schedule several depositions between now and December 13, 2007, including: (1) a Rule 30(b)(6) deposition of Ag-Innovations, Inc. ("AgInnovations") concerning that company's documents that were supplied to us after the depositions of Linda and Larry Faillace which occurred on March 6 and 7, 2007, (2) the deposition of witness(es) who prepared an affidavit regarding their sale of four East Friesian sheep in 1999 and 2000, which plaintiffs did not supply to us until November 12, 2007, and (3) a witness designated by plaintiffs to testify concerning topic # 4 of our Rule 30(b)(6) deposition notice regarding SHFI. At this time, we do not anticipate that we will need to conduct additional discovery concerning these three matters. However, we reserve our right to conduct any additional follow-up discovery that is necessary. Even though we requested plaintiffs to provide us with a copy of their draft motion to amend their complaint in August 2007, plaintiffs did not do so until November 1, 2007. -22

1

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 3 of 8

SHFI had not been properly served with the August 10, 2007 notice of deposition because SHFI was not a party and had not been served with a subpoena.3 Def. App. 29. On September 13, 2007, we attempted to serve a subpoena upon H&H on behalf of SHFI, but Mr. Jonathan Abram, counsel of record for the plaintiffs in this case, refused service on behalf of SHFI claiming that his firm did not represent SHFI. Def. App. 31-36. Because Mr. Abram refused to accept service of a subpoena on behalf of SHFI, counsel for the Government, Mr. Chandler, had to make arrangements with Mr. Thomas Amidon, SHFI's Vermont counsel, to accept service of the subpoena on behalf of SHFI in connection with our Rule 30(b)(6) SHFI notice of deposition. On September 10, 2007, plaintiffs' counsel, H&H, responded to our SHFI document production requests served on August 10, 2007. Plaintiffs' counsel stated that it had already provided all of the documents that were responsive to six of the 10 document production requests and that SHFI had no documents that were responsive to one of the requests. Plaintiffs' counsel requested us to narrow our document production requests and our Rule 30(b)(6) deposition notice. We conferred with plaintiffs' counsel by telephone during the first and second week in October 2007. On October 12, 2007, counsel for the Government, Mr. Chandler, sent a letter to counsel for the plaintiffs confirming his understanding of plaintiffs' position regarding the six Rule 30(b)(6) deposition topics and plaintiffs' intentions with regard to their September 10, 2007 response to the 10 production requests served on August 10, 2007. Def. App. 37-39. In that

In mid-July 2007, during the deposition of Ms. Andrea Robertson, an accountant for Houghton Freeman LLC, even though he did not expressly state that H&H represented SHFI, plaintiffs' counsel, Mr. Willen, asserted an attorney-client privilege with respect to questions counsel for the Government, Mr. Robert Chandler, asked of Ms. Robertson relating to communications between Mr. Willen and Ms. Robertson. Def. App. 9-17. -3-

3

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 4 of 8

letter, Mr. Chandler noted that the Government was agreeable to preparing interrogatory requests for three of the six Rule 30(b)(6) SHFI deposition topics under the following conditions: (1) plaintiffs provided a response to the interrogatories within two weeks of the date upon which the interrogatories were served; (2) the interrogatories would not count toward the 25 interrogatory limit set forth in the Rules of the Court of Federal Claims; and (3) we could conduct depositions on the topics that were the subject of the interrogatories it believed were necessary should plaintiffs' responses require further elaboration. Def. App. 38. On October 15, 2007, plaintiffs responded to our August 10, 2007 notice of deposition. Plaintiffs agreed to produce certain tax return documents which were the subject of two of our August 10, 2007 document production requests and topics numbered 1 and 6 of the Rule 30(b)(6) SHFI subpoena. Plaintiffs agreed to the terms stated in our October 12, 2007 letter concerning topics numbered 2 through 4, subject to reasonableness objections that plaintiffs might have. Def. App. 41. Notwithstanding the fact that plaintiffs did not object to topic # 1, to the extent that we requested tax information about SHFI,4 plaintiffs did not identify their designees for Rule 30(b)(6) SHFI deposition topic # 1 until October 18, 2007, and they did so only after we threatened to file a motion to compel. Plaintiffs' counsel indicated that both of the designated witnesses were not available on four of the six dates that we proposed because one of the witnesses was out of the country. The parties were not able to agree upon dates for the

Initially, in a letter dated September 7, 2007, plaintiffs took a "tit-for-tat" position stating that it would not proffer any witnesses in response to our Rule 30(b)(6) SHFI deposition notice until the Court ruled on our earlier motion for protective order and plaintiffs' cross motion to compel. Def. App. 29. -4-

4

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 5 of 8

depositions relating to topic # 1 until the last week in October 2007. At that time, the deposition of Maureen Wall was scheduled to occur on November 9, 2007, and the deposition of Mr. Julian Harrison was scheduled to occur on November 16, 2007. Subsequently, on November 5, 2007, counsel for the plaintiffs informed us that the November 16, 2007 Rule 30(b)(6) deposition needed to be re-scheduled because of a personal emergency. That deposition was re-scheduled to occur on November 28, 2007. Plaintiffs did not serve the documents that were responsive to our August 10, 2007 second request for production of documents until October 29, 2007. Again, plaintiffs served these documents only after we threatened to file a motion to compel. Def. App. 39. On November 14, 2007, we served our interrogatories in lieu of our Rule 30(b)(6) SHFI deposition topics numbered 2 through 4. As previously agreed by the parties, we expected to receive plaintiffs' response within two weeks of the service of the interrogatories. However, on November 16, 2007, H&H informed us that plaintiffs would not comply with the parties' agreement and, in a letter dated November 21, 2007, indicated that plaintiffs would not respond to the three Rule 30(b)(6) SHFI deposition topics with interrogatory responses in lieu of one or more depositions. Def. App. 44-45, 46-47. H&H also refused to proffer any witness to respond to one of the three topics, topic # 2.5 As to the addition of three new plaintiffs in this case, we will require some additional discovery concerning SHFI's financial documents after our November 28, 2007 deposition of SHFI's tax preparer. The parties will also require to schedule the depositions of witnesses

We will continue to attempt to work out this issue with plaintiffs' counsel but, if we are unable to do so, we will file a motion to compel. -5-

5

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 6 of 8

plaintiffs have designated to respond to Rule 30(b)(6) SHFI's deposition topics numbered 3 and 4. Moreover, once the new plaintiffs have been added to the complaint, the Government will need to obtain assurances from the plaintiffs that the Government has received all of the information and documents that are in the possession, custody, or control of the new plaintiffs which are responsive to the written discovery requests served upon plaintiffs on July 26, 2006, in connection with Defendant's First Set of Interrogatories and Request for Production of Documents. In addition, we have notified plaintiffs that we intend to depose one or more third party witnesses in connection with an affidavit plaintiffs served upon us on November 12, 2007, and one or more Ag-Innovations witnesses in connection with the documents Ag-Innovations, Linda Faillace, and Larry Faillace served upon us after the depositions of these individuals occurred in March 2007. As of this date, we have tentatively agreed to the scheduling of the following three depositions prior to December 13, 2007: (1) the third-party witness whose affidavit plaintiffs produced on November 12th, (2) the Faillace representative(s) concerning the documents produced by Ag-Innovations and the Faillaces after March 2007, and (3) a witness who is knowledgeable about Rule 30(b)(6) SHFI topic # 4. We also expect to depose a witness concerning topic # 3 of the Rule 30(b)(6) deposition notice, but this cannot be scheduled until after the close of discovery on December 13, 2007, because the designated witness has recently undergone surgery. If we cannot reach agreement upon our proposed deposition of a witness concerning topic # 2 of our Rule 30(b)(6) deposition notice, should the Court grant our motion to compel, we will need to schedule the deposition of plaintiffs' designee(s) concerning that topic. In addition, once we have completed the

-6-

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 7 of 8

forthcoming three depositions, we may need to conduct one or more follow-up depositions to insure that we have addressed all relevant matters concerning the new plaintiffs in this case. For the foregoing reasons, we respectfully request that the Court grant our motion for enlargement of the discovery period. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

/s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

OF COUNSEL: DARLENE BOLINGER United States Department of Agriculture Office of General Counsel 1400 Independence Ave., S.W. Washington, D.C. 20250

/s/ Sheryl L. Floyd SHERYL L. FLOYD Senior Trial Counsel ROBERT CHANDLER Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0282 Facsimile: (202) 514-8624 Attorneys for Defendant

NOVEMBER 28, 2007

-7-

Case 1:05-cv-00776-MMS

Document 61

Filed 11/28/2007

Page 8 of 8

CERTIFICATE OF FILING I hereby certify that on this 28th day of NOVEMBER, 2007, a copy of this "DEFENDANT'S SECOND MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO COMPLETE DISCOVERY" was filed e1ectronically. 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/ Sheryl L. Floyd