Free Motion to Take Deposition - 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,

No. 05-776C Judge Margaret M. Sweeney

v. THE UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' MOTION FOR LEAVE TO CONDUCT MORE THAN TEN DEPOSITIONS Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace, and Houghton Freeman (collectively "Plaintiffs") respectfully move pursuant to Rule 30(a)(2)(A) of the Rules of the United States Court of Federal Claims (RCFC) for leave to conduct more than ten depositions. I. Brief Factual Background

This case arose after the United States Department of Agriculture (USDA) seized and slaughtered all of Plaintiffs' healthy, valuable, purebred sheep on the premise that the sheep were infected with what the USDA termed "an atypical [transmissible spongiform encephalopathy (TSE)] of foreign origin." (Compl. ¶¶ Intro., 8.) The USDA effectuated this taking in March 2001 (if not earlier) pursuant to a Declaration of Extraordinary Emergency that it had issued in July 2000 after four of Plaintiff Freeman's sheep allegedly had tested positive for a TSE. (Compl. ¶¶ 23, 25-26.) Prior to this declaration and since the sheep's importation in 1996, the USDA, including several individuals from the Animal and Plant Health Inspection

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Service (APHIS), had worked in conjunction with certain representatives of the state of Vermont's Department of Agriculture (VTDA) to monitor the sheep for any signs of a TSE. Yet, despite hundreds of USDA-conducted, scientifically-validated tests confirming that the sheep were not infected with any type of TSE (Compl. ¶ 21), the USDA relied on four test results ­ results that were based on scientifically unsound and highly-questionable testing procedures ­ to justify the seizure and slaughter of all of the sheep. (Compl. ¶¶ 21-22, 25-26.) At that time, the USDA also issued federal quarantines over Plaintiffs' real property, replacing quarantines that had been imposed on Plaintiffs' sheep and other property by the VTDA since October 1998. (Compl. ¶¶ Intro., 29-30.) Plaintiffs thereafter filed legal actions in the United States District Court for the District of Vermont challenging the validity of the Declaration of Extraordinary Emergency and the federal quarantines. (Compl. ¶ 24.) The cases relating to Plaintiffs' sheep ultimately were declared moot after the Government seized (and eventually killed) every single one of Plaintiffs' sheep prior to an appeal to the United States Court of Appeals for the Second Circuit. (Compl. ¶¶ 25-26.) Plaintiffs then filed this action seeking just compensation under the Fifth Amendment, or alternatively fair market value under former 21 U.S.C. § 134a, for the value of the slaughtered sheep and the taking of their other property. (Compl. ¶¶ 25-26.) Plaintiffs have sought the Government's agreement to deposing these witnesses, but it has refused to consent to more than ten depositions. II. Argument

Under Rule 30(a)(2)(A), a party's request for more than ten depositions "shall be granted to the extent consistent with the principles stated in RCFC 26(b)(2)." RCFC 30(a)(2)(A) (emphasis added). RCFC 26(b)(2) allows the court to limit the number of depositions only -2\\\DC - 090737/000002 - 2389521 v7

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if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. RCFC 26(b)(2). Plaintiffs should be permitted to take more than ten depositions because the witnesses that they have identified1 are critical to this case, and none of the limiting factors identified in RCFC 26(b)(2) override the need for these depositions. As the above factual recitation suggests, over the course of the last decade a large number of individuals played a role in the events leading to the seizure of Plaintiffs' property. This fact is confirmed by the Government's Rule 26(a)(1) disclosures and interrogatory responses, wherein it identified
1

Specifically, Plaintiffs identify the following individuals: Yves Berger (Appraiser); John Clifford (former Acting Deputy Administrator, USDA, APHIS, Veterinary Services (VS)); Ron DeHaven (former Deputy Administrator USDA, APHIS, VS); Linda Detwiler (former Senior Veterinarian, Emergency Programs, USDA, APHIS, VS); Leon Graves (former Commissioner, Vermont Department of Agriculture, Food, and Markets); Mark Hall, (Director of Pathology, USDA, APHIS); Thomas Holt (former USDA, APHIS, VS); Samuel Hutchins (former Vermont State Veterinarian); Todd Johnson (Vermont State Veterinarian); Axel Meister (Appraiser); Katherine O'Rourke (Research Microbiologist, USDA, Agricultural Research Service, Animal Disease Research Unit); Richard Race (Senior Investigator, National Institute of Health, Rocky Mountain Laboratory); Craig Reed (former Deputy Administrator, APHIS); Richard Rubenstein (Head of Molecular and Biochemical Neurovirology, Institute for Basic Research in Developmental Disabilities); Mary Jo Schmerr (Lead Scientist, Prion Diseases, Agricultural Research Service, National Animal Disease Center); William Smith, (Area Veterinarian in Charge, New England Area, USDA, APHIS, VS); Alfonso Torres (Deputy Administrator, USDA, APHIS, VS); Peter Welkerling (Appraiser); and Wayne Zeilenga (USDA, APHIS, VS). Of the aforementioned witnesses, Plaintiffs already have deposed Dr. Smith and have scheduled the depositions of Drs. Detwiler, Zeilenga, and Rubenstein, as well as those of Messrs. Berger and Graves. -3\\\DC - 090737/000002 - 2389521 v7

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twenty-seven individuals who possess relevant, discoverable information. Plaintiffs now seek to depose nine additional individuals, and one RCFC 30(b)(6) witness who can testify regarding the testing procedures and results of the National Veterinary Services Laboratory (NVSL). These witnesses, Plaintiffs believe, possess information relating to the number of issues that this case involves. They consist of scientists who conducted and analyzed a variety of tests on Plaintiffs' sheep, the appraisers who examined and evaluated Plaintiffs' sheep, and key government officials who made critical decisions or oversaw important developments in this case. For example, Plaintiffs seek to depose the scientists and certain other individuals involved in the testing of Plaintiffs' sheep. Because Plaintiffs have alleged constitutional and statutory takings (see Compl. ¶¶ 40-50 (Counts I and II and Count III respectively)),2 a determination of whether the sheep in fact were healthy will be important in determining the value of the sheep and the precise legal theory under which Plaintiffs are entitled to recover. These witnesses are not duplicative of one another, as each one conducted different types of tests at different times. For instance, Dr. Richard Rubenstein's testimony about his Western blot analyses would be wholly different from Dr. Mary Jo Schmerr's testimony regarding her capillary electrophoresis tests. The same can be said for Dr. O'Rourke's testimony regarding her third-eyelid test when compared to testimony about the histopathologocial and immunohistochemical tests conducted by the scientists at the NVSL. And Dr. Mark Hall, according to documents, may be able to provide information regarding the Government's assessment of the specific testing procedures that were used.

Count II of Plaintiffs' Complaint is mislabeled as a statutory taking. As the text Count II indicates, Plaintiffs allege a taking under the Fifth Amendment for the imposition of the quarantines over Plaintiffs' real property. -4\\\DC - 090737/000002 - 2389521 v7

2

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In addition, Plaintiffs seek depositions from each of the appraisers who examined and evaluated Plaintiffs' sheep, specifically Axel Meister, Yves Berger, and Peter Welkerling, as well as from any individuals involved in the their selection. These witnesses relate to Plaintiffs' allegation that the USDA acted arbitrarily and capriciously and otherwise abused its discretion in selecting biased appraisers and in improperly valuing Plaintiffs' sheep and other property. (Compl. ¶¶ 44, 47.) The remaining requested deponents are current and former employees from the USDA, APHIS, and VTDA, all of whom played critical roles in the importation, monitoring, and seizure of Plaintiffs' sheep, the issuance of the quarantines over Plaintiffs' property, and the payments made to Plaintiffs and to other sheep owners whose flocks were seized. For instance, Drs. Linda Detwiler, William Smith and Wayne Zeilenga have information about the factual and other considerations that ultimately lead to the takings and were key players in the compensation assessments regarding Plaintiffs' sheep. Similarly, documents indicate that Craig Reed has knowledge of the order to dispose of the sheep and that John Clifford, Ron DeHaven, Thomas Holt, and Alfonso Torres have information relating to the issuance of the federal quarantines and to payments made by the USDA to Plaintiffs and others. And Plaintiffs anticipate that Leon Graves, Sam Hutchins, and Todd Johnson will provide necessary information regarding actions of the Vermont state government, including the VTDA's relationship with APHIS and the USDA in monitoring and quarantining Plaintiffs' property. Given the interplay of the several state and federal agencies and departments involved over the course of time in this matter, discovery from the identified witnesses is not cumulative or duplicative. Each of these witnesses approached the situation in a different capacity, and many of these witnesses communicated with Plaintiffs independently on separate occasions. -5\\\DC - 090737/000002 - 2389521 v7

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Finally, the amount of controversy involved in this case is significant. Plaintiffs' proposed valuation expert has assessed the total value of Plaintiffs' sheep and other chattel at over $1.6 million. In addition, based on this proposed expert's and other witnesses' anticipated testimony, the economic impact of the quarantines on Plaintiffs' land exceeded $270,000.00. These amounts, taken together with the importance of the proposed discovery in resolving the issues involved herein, Plaintiffs' dedication in pursing this case to its conclusion, and Plaintiffs' right to receive just compensation for their seized property, are not outweighed by the limited burden and expenses involved in taking the requested depositions. III. Conclusion

For these reasons, Plaintiffs respectfully request that the Court grant Plaintiffs leave to conduct the depositions of the individuals and RCFC 30(b)(6) witnesses identified herein.3 Respectfully submitted,

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,
3

The request for leave to take additional depositions relates only to fact witnesses. Defendants have not yet identified their expert witnesses, some or all of whom may (or may not) be identified herein. Once the Government identifies its expert witnesses, Plaintiffs respectfully reserve the right to seek leave to depose such experts to the extent they are not covered by this motion. -6\\\DC - 090737/000002 - 2389521 v7

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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 (202) 637-5910 (facsimile) Dated: November 22, 2006

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

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs,

No. 05-776C

v. THE UNITED STATES OF AMERICA, Defendant.

ORDER The Court having considered Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions, and any Opposition thereto, it is this _____ day of ____________________, 200__, ORDERED: (1) GRANTED; and (2) Plaintiffs ARE GRANTED leave to conduct ten additional depositions of Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions is

the individuals and RCFC 30(b)(6) representative identified in their Motion.

Margaret M. Sweeney JUDGE

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CERTIFICATE OF FILING The undersigned certifies under penalty of perjury that on this 22nd day of November, 2006, I caused a true and correct copy of the foregoing Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions 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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