Free Joint Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COLLINS NATIONAL, a limited partnership, and COLLINS DEVELOPMENT CO., a California corporation as General Partner, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 05-563C (Judge Baskir)

JOINT STATUS REPORT Pursuant to the Court's order dated March 12, 2007, the parties respectfully submit the following joint status report. The parties had scheduled an Alternative Dispute Resolution ("ADR") conference with ADR Judge Hodges, Jr. for March 1, 2007 in La Jolla, California. On February 26, 2007, the parties submitted a written statement of their respective positions to ADR Judge Hodges to facilitate ADR. On February 27, 2007, two days prior to the scheduled ADR conference, Collins National contacted ADR Judge Hodges and informed him of their concern that the Government's mediation statement contained an expert declaration containing information never previously disclosed to Collins. Collins National believed that ADR should be postponed to allow time to have Collins' expert review the declaration and, if necessary, for limited discovery regarding the opinions expressed by the Government's expert in his declaration. Counsel for defendant, Nancy M. Kim, could not participate in the telephonic conference on February 27, 2007, because she was defending a deposition in another matter. Her supervisor, Bryant Snee, appeared for the Government. In light of plaintiffs' concerns, ADR Judge Hodges decided to cancel the scheduled ADR conference and postpone it for a later time if appropriate. On March 13, 2007,

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Ms. Kim left Government employment. Replacement counsel for the Government on this matter is Bondurant Eley. Collins National proposes that the Court schedule a conference with the parties at the earliest date to see what, if any, additional discovery may be beneficial to the ADR process. The parties recognize that candid disclosure of opinions is necessary in ADR. However, the parties do not wish to lose the benefit that early settlement may have in terms of both time and costs savings. Collins National also requests that the Court amend its Order of November 7, 2006, so that the next Joint Status Report is due in 90 days (June 8) rather than 60 days (May 8) in order to allow mediation to take place. Although the Government has no objection to mediating this dispute, it is reluctant to proceed with ADR under circumstances where any further discovery, even limited discovery involving the Government's expert, has been allowed. The Government had agreed to participate in ADR at this stage because, if successful, it would have enabled the parties to avoid the expense of completing discovery. To date, the parties have completed written discovery (interrogatories and requests for production of documents), but have not conducted depositions of fact witnesses and have not conducted expert discovery. The Government does not believe that it would be appropriate to allow Collins National to proceed with expert discovery in advance of the mediation, as this would unfairly advantage Collins National at mediation without allowing the Government to seek discovery of plaintiff's expert. Further, the Government does not believe that expert depositions are appropriate until the parties have completed deposition of fact witnesses and the parties' experts have provided expert reports as required under Rule 26(a)(2)(A) of the Rules of the Court of Federal Claims. Any opinions expressed by the

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Government's expert in his declaration represent preliminary opinions based upon the documents produced only and may be further developed or modified based upon additional discovery. Accordingly, the Government prefers to proceed with the remaining discovery and then to reexamine upon the completion of discovery, including expert discovery, whether ADR would be useful. The Government, therefore, requests the Court to modify its November 7, 2006, stay order and issue a scheduling order for the completion of discovery. The Government proposes the following discovery schedule: completion of depositions by July 31, 2007, expert reports due by October 31, 2007, and expert depositions completed by December 31, 2007. Counsel for Collins objects to reopening general discovery prior to the completion of ADR mediation. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director s/Bryant G. Snee BRYANT G. SNEE Deputy Director

s/Richard S. Bayer RICHARD S. BAYER, ESQ. Law Office of Richard S. Bayer 1150 Silverado Street La Jolla, CA 92037 Tel: (858) 454-1005 Fax: (858) 454-1021 Attorney for Plaintiffs

s/A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 616-8254 3

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Fax: (202) 514-8624 March 22, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on March 22, 2007, a copy of the foregoing "JOINT STATUS REPORT" was filed electronically. 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/ A. Bondurant Eley

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