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

Case 1:05-cv-00776-MMS

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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' RESPONSE TO DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME FOR DEFENDANT TO COMPLETE DISCOVERY On September 13, 2007, the Government moved to extend the discovery period for a second time.1 (See docket entry # 53.) In its motion, the Government sought yet another three months of discovery, making a variety of accusations about plaintiffs' conduct in the discovery process. The very next day, without awaiting a response, this Court granted that motion. (See docket entry # 54.) Although plaintiffs will not ask for reconsideration of the decision to extend the discovery deadline, we file this response in order to correct what is, at present, an extremely distorted and one-sided record. Plaintiffs have acted in good faith throughout the entire discovery process. In response to the Government's numerous document requests, plaintiffs and their counsel have conducted numerous searches and timely produced documents, ranging from the relevant to the ridiculous. As often happens in litigation, the existence of additional documents came to light during

The Government's assertion that "[t]his is our first request for an enlargement of time for this purpose," is patently false. (Def.'s Mot. at 1.) The discovery period had been extended at least two previous times. (See docket entry ## 22 and 40.) One such extension occurred specifically at the Government's request. (See docket entry # 21.)

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depositions in this case. It certainly happened often during the depositions of the Government's witnesses. In fact, the Government produced documents at no fewer than six of its depositions. For example: · Dr. Richard Rubenstein. During the deposition of Dr. Rubenstein, one of the Government's experts, Dr. Rubenstein testified that he had provided written notes to the Government's counsel, Ms. Floyd, commenting on one of plaintiffs' expert reports, but Ms. Floyd never produced those notes to plaintiffs. The notes were produced at the deposition only after plaintiffs counsel insisted that they be produced. (Rubenstein Dep. 42:16-44:2; 48:8-56:12.) Notably, Ms. Floyd expressly argued that plaintiffs would not be "prejudiced" from the production of these notes at the deposition because plaintiffs had the opportunity to ask Dr. Rubenstein about them during the deposition. (See id. at 56:5-12.) Dr. Robert Rohwer. The same happened during a deposition of Dr. Rohwer, another of the Government's experts. During Dr. Rohwer's deposition on July 30, 2007, it emerged that the Government had not produced a report that Dr. Rohwer had created over five years earlier, in March 2002. The report was produced on the day of the deposition. (Rohwer Dep. 191:5-12, Pls.' Dep. Ex. 204.) Plaintiffs' counsel also learned during this deposition that Dr. Rohwer had reviewed a number of documents in preparation of his deposition. At the deposition, Dr. Rohwer produced a document purporting to describe the documents, but he did not produce the underlying documents. Plaintiffs requested the underlying documents, and Dr. Rohwer agreed to produce them. (Rohwer Dep. 66:170:18.) To date, plaintiffs still have not received these documents. Dr. Reiff, Mr. Berger, Mr. Meister, and Dr. O'Rourke. The Government also produced documents on the day of the depositions for many other deponents, including all four mentioned witnesses. All of these documents were responsive to plaintiffs' initial document requests served in August 2006. To be sure, the same has happened during a few depositions of plaintiffs' witnesses. Some of the documents about which the defendant now complains were publicly available; others were duplicative and cumulative of information already in the Government's possession. Nevertheless, plaintiffs agreed to produce these documents and did so from May through August of 2007. Indeed, after learning of the existence of certain additional documents prior to the July 2007 depositions, plaintiffs' counsel offered to produce the documents and to delay the depositions to allow the defendant an opportunity to review these documents. The Government

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declined this offer and decided to proceed with the scheduled depositions; these additional documents were produced prior to the start of these depositions. Only now, months after these documents were in fact produced, does the Government complain that, unlike its own history of producing documents during depositions, plaintiffs' productions require an extension of the discovery period. Neither the plaintiffs nor the Government suffered any prejudice from the fact that both sides' depositions revealed the existence of additional documents, which each side then duly produced. There was nothing disgraceful about that when the Government did it, nor when plaintiffs did. The truth is that the Government's request to extend the discovery period ­ a discovery period already previously prolonged at the Government's request ­ is not related to any alleged delay in document production. Rather, it is the result of the Government's failure to conclude its discovery during the additional five month period prior to the deadline that this Court set when the it last extended the deadline. (See docket entry # 40.) As of today, discovery has been underway for over a year. The Government complains about two particular events, and we will briefly respond. Freeman Documents: The Government complains that it "learned only recently" that Mr. Freeman possessed certain property-related documents responsive to Document Request No. 19 and certain financial statements and reports subject to Document Request Number 20. (See Def.'s Mot. at 2.) But the Government first raised this issue over two months ago on July 3, 2007. Following the July 4th holiday, plaintiffs promptly produced, among other documents, a publicly-available deed identifying the transfer of certain property held by Mr. Freeman to the Freeman Family LLC, and another publicly-available document containing corporate information on Skunk Hollow Farm, Inc. (See Attachment A, Letter from K. Willen to S. Floyd

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and R. Chandler (July 11, 2007).) The following day, July 12, 2007, plaintiffs' counsel produced additional deeds relating to Skunk Hollow Farm, all of which were publicly available in the Town of Greensboro. (See Attachment B, Letter from K. Willen to S. Floyd and R. Chandler (July 12, 2007).) On July 13, 2007, plaintiffs' counsel learned of the existence of additional financial documents responsive to Document Request No. 20. Plaintiffs' counsel offered to reschedule the upcoming depositions to allow the Government an opportunity to review the documents in advance. The Government declined this offer, agreeing instead to receive the documents the morning of the Robertson deposition, July 18, 2007. On July 19, 2007, plaintiffs also produced the tax returns for Skunk Hollow Farm, Inc. Both of these sets of documents were produced in advance of the deposition of Mr. Freeman's bookkeeper, which occurred on July 20, 2007. Indeed, the Government used these documents during the bookkeeper's deposition. Faillace Documents: The Government's suggestion of prejudice stemming from the production of certain documents from the Faillaces is even more disingenuous and misleading. During the depositions of Linda Faillace and Dr. Larry Faillace on March 6-7, 2007, respectively, the Government requested numerous categories of documents from the Faillaces, many of which had already been produced to the Government long before. In a subsequent letter dated May 4, 2007, the Government identified the documents that it had requested during the deposition, including, among others, a barn book, business plans, and twenty-seven notebooks that Mrs. Faillace used to write Mad Sheep: The True Story Behind the USDA's War On A Family Farm. (See Attachment C, Letter from S. Floyd to K. Willen (May 4, 2007).) Plaintiffs responded a week later, explaining that many of the documents requested by the Government had already been produced, and undertaking to produce almost all the others by

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May 18, 2007. (See Attachments D and E, Letters from K. Willen to S. Floyd (May 11 & 18, 2007).) Plaintiffs did initially object to producing the Mad Sheep notebooks on the grounds that the Government already had the book, that the handwritten notes were cumulative of the book and other documents, and that producing them would be unduly burdensome. The Mad Sheep notebooks are thousands of pages of handwritten material relating to news reports and other events during the Faillaces' interaction with the United States Department of Agriculture. The information contained in these notebooks had been condensed into a timetable (which was produced). In order to produce the notebooks themselves, every page would have to be reviewed for privilege. Mrs. Faillace was represented by counsel and conferred with Mr. Thomas Amidon, Mr. Freeman's attorney, during many of the events recorded in the notebooks; and so interspersed throughout, it was believed, were descriptions of conversations that are protected by the attorney-client privilege. Plaintiffs objected that it would be unduly laborious, burdensome, and expensive to go through these thousands of pages of handwritten notes, line by line, page by page, to identify and redact privileged information. The Government persisted in its demand for the notebooks, so plaintiffs agreed to produce them on a rolling basis. The Government requested that the production be completed by August 10, 2007, and plaintiffs agreed. (See Attachment F, Letter from K. Willen to S. Floyd (July 25, 2007).) A rolling production was complete by that date. (See Attachment G, Letters from K. Willen to S. Floyd (June 15, 2007, June 21, 2007, July 18, 2007, Aug. 3, 2007, and Aug. 10, 2007).) In the end, almost 2,400 pages were reviewed and produced from these notebooks. Notably, the Government has not identified any material, newly-discovered information from the Mad Sheep notebooks that it claims was not otherwise known during the six months

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between the Faillaces' depositions and the filing of its Motion. Nor has it sufficiently explained how any of the Faillace documents ­ either those produced in May 18, 2007, or thereafter ­ rationally justify its request to extend the discovery period. CONCLUSION Plaintiffs submit that this case has been pending long enough and very much look forward to trial. The Court has now granted yet another three months of discovery. Although we would have opposed that additional delay, we do not ask the Court to reconsider its decision. However, we believe it important to file this response in the record so that plaintiffs' position can be fairly and accurately represented. 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: September 18, 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 18th day of September, 2007, I caused a true and correct copy of the foregoing Plaintiffs' Response To Defendant's Motion For An Enlargement Of Time For Defendant To Complete Discovery 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