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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TELENOR SATELLITE SERVICES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-528C (Judge Baskir)

DEFENDANT'S MOTION TO ENLARGE DISCOVERY PERIOD FOR THE PURPOSE OF TAKING THE DEPOSITION OF MARY KIM BAUMGARTNER Defendant, the United States, respectfully requests, pursuant to Rule 6(b)(1) of the Rules of the United States Court of Federal Claims, that the Court grant an enlargement of the discovery period of 119 days, to and including Friday, January 26, 2007, for the sole purpose of taking the deposition of Mary Kim Baumgartner. The discovery period closes today, Friday, September 29, 2006. This is defendant's first request for an enlargement of time for this purpose. Counsel for plaintiff has represented to counsel for defendant that plaintiff will oppose this request. On September 8, 2006, we noticed the deposition of Mary Kim Baumgartner. Appendix ("App.") 1, 3. Plaintiff had identified Ms. Baumgartner as one of the Telenor employees who were "significantly involved with the project that Telenor undertook [in March 2003] with the

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State Department," who "initially monitored traffic for the pilot program every two weeks," and who "developed, approved, monitored, or served as points of contact for the `cooperative and joint effort' referenced in Exhibit A to the complaint;" that is, the DART pilot program that is the subject of this action. App. 5-8 (Responses To Interrogatories Nos. 5, 6, 18). On September 13, 2006, counsel for Telenor informed us that Ms. Baumgartner was, for medical reasons, unavailable to be deposed. App. 10, 12. On September 21, 2006, we proposed that Telenor agree that, if this case is scheduled for trial, the parties will jointly request that the court reopen the discovery period for the purposes of taking Ms. Baumgartner's deposition. App. 13. We later understood that Telenor had agreed to that proposal. However, in view of plaintiff's statement with respect to Ms. Baumgartner in the Joint Status Report filed today, we apparently do not have that agreement; rather, it appears that plaintiff would agree to only a limited deposition of Ms. Baumgartner, whose availability plaintiff can, apparently, not predict. Sept. 29, 2006 Joint Status Report at 1-2. A party may take the deposition of any person with information relevant to an action. See Rules 26(b)(1) and 30(a)(1) of the Rules of the

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United States Court of Federal Claims ("RCFC"). Telenor's disclosures indicate that Ms. Baumgartner is one of the three Telenor personnel who possess the most personal knowledge of the subject matter of this action. Regardless of the testimony that a person designated pursuant to RCFC 30(b)(6) might provide, we are entitled to discover, through deposition of Ms. Baumgartner, the personal knowledge that Ms. Baumgartner possesses that is relevant to this case. Ms. Baumgartner is, at least temporarily, unable to provide deposition testimony. Therefore, we request that the Court enlarge the time for discovery for the purpose of taking Ms. Baumgartner's deposition until January 26, 2007. We expect that if Ms. Baumgartner is able to be deposed by that date, trial of this case, if trial becomes necessary, could commence in February 2007. We do not foreclose requesting of the Court another enlargement if Ms. Baumgartner is not able to provide deposition testimony by January 26, 2007. For these reasons, the United States respectfully requests that the Court grant this motion for an enlargement of time and enlarge the discovery period of 119 days, to and including Friday,

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January 26, 2007, for the sole purpose of allowing the Government to take the deposition of Mary Kim Baumgartner. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Patricia M. McCarthy PATRICIA M. MCCARTHY Assistant Director

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Telephone: (202) 514-4325 Facsimile: (202) 514-7965 OF COUNSEL: ONA M. HAHS Assistant Legal Adviser Department of State September 29, 2006 Attorneys for Defendant

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Certificate of Filing I hereby certify that on September 29, 2006, a copy of the foregoing Defendant's Motion To Enlarge Discovery Period For Purposes Of Taking The Deposition Of Mary Kim Baumgartner 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/Timothy P. McIlmail