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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARTURO MORENO, JR., et. al, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )
No. 05-142C (Judge Firestone)
DEFENDANT'S OUT OF TIME MOTION FOR AN ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS, PLAINTIFFS' FIRST SET OF INTERROGATORIES, AND PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS ACCOMPANYING ITS NOTICE OF DEPOSITION OF WAYNE COLEMAN Pursuant to the Court's order dated April 3, 2006, the Court bifurcated the issues of liability and damages in this case, and ordered that "[d]iscovery shall proceed on liability" and "[d]iscovery regarding damages is stayed." Pursuant to Rule 6(b)
of the Rules of the United States Court of Federal Claims ("RCFC"), defendant requests an enlargement of time of 25 days, to and including August 4, 2006, within which to respond to plaintiffs' First Request for Production Of Documents, First Set Of Interrogatories, and Request For Production Of Documents Accompanying its Notice of Deposition of Wayne Coleman. Our
response was due, by agreement of the parties, on July 10, 2006. This is our first request to the Court for an enlargement of time for this purpose. Plaintiffs' counsel has indicated that he
opposes an enlargement of time for this purpose. BACKGROUND FACTS On or about May 15, 2006, plaintiffs sent by postal mail and
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electronic mail its First Request for Production of Documents, its First Set of Interrogatories, and a Request for Production of Documents accompanying a notice of deposition. See Exhibit 1.
On June 14, 2006, prior to the expiration of the standard 30-day period for responses, the parties agreed to extend the response deadline until July 10, 2006. See Exhibit 2 (electronic email
and letter requested by plaintiffs' counsel to memorialize the agreement by counsel for defendant and counsel for plaintiffs counsel). On July 7, 2006, upon approaching the agreed-upon deadline of July 10, 2006, defendant's counsel realized that it would not be possible to meet this deadline, and sent a revised proposed schedule to plaintiffs' counsel by postal mail and electronic mail. See Exhibit 3. After discussing this proposal with
plaintiffs' counsel on the telephone on July 10, 2006, defendant proceeded to follow the proposed revised schedule upon the basis that plaintiffs' counsel had indicated that he was adverse to proceeding by motion, and pending plaintiffs' counsel's written response. Plaintiffs' counsel was notified of this action by See Exhibit 4.
electronic mail.
On the afternoon of July 12, 2006, plaintiffs' counsel asserted by electronic mail that all of defendant's objections had been waived by not asserting those objections on or before July 10, 2006. See Exhibit 5. In order to preserve its
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objections, which it clearly did not waive, considering the parties' ongoing discussion of the matter of the appropriate response deadline, defendant files this out of time motion for an enlargement of time.1 REASONS FOR AN ENLARGEMENT OF TIME Defendant requires an enlargement of time for three reasons. First, since the parties' agreement on June 14, 2006, agency counsel has left the agency, requiring newly assigned agency counsel rapidly to become familiar with the case. Second,
plaintiffs' requests, if interpreted literally, go far beyond the scope of the Court's order limiting discovery to the issue of liability, and have caused significant effort by defendant and agency counsel in attempting to determine what documents might be responsive or relevant to the claims of any of the more than 500 individual plaintiffs, and in contacting various Government entities that could possess such documents. The fact that this
case also presently involves over 500 individual plaintiffs, compounds the issue of unduly burdensome requests, forcing defendant to determine and accomplish a reasonable response in a
Obviously, had plaintiffs' counsel clearly stated on July 10, 2006, that it believed that proceeding by motion was the only means whereby defendant could preserve its objections because plaintiffs would otherwise argue that all objections had been waived, defendant would have filed a timely motion for an enlargement of time. Plaintiffs' delayed response on July 12, 2006, is the only reason defendant has necessarily filed this motion out of time. 3
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very limited amount of time. Finally, defendant's counsel has had numerous other responsibilities competing for his time. Among other
assignments, defendant's counsel was unexpectedly required to address the issue of additional notice and payments to plaintiffs in the related case of Porta v. United States, No. 05-14210 (Fed. Cl.), and was required to prepare for and argue a substantive dispositive motion before this Court on July 6, 2006, in Harper/Nielsen-Dillingham Builders, Inc. v. United States, No. 05-269C (Fed. Cl.), and an appeal before the Court of Appeals for the Federal Circuit on July 10, 2006, in BENMOL Corp. v. Paulson, No. 05-1532 (Fed. Cir.). Defendant's counsel also has
been preparing initial disclosures in California Human Development Corp. v. United States, No. 05-1029C (Fed. Cl.), now due by agreement of the parties on July 14, 2006, and discovery responses in Porta, due to plaintiffs' counsel on July 17, 2006. Defendant's counsel was also responsible for obtaining detailed affidavits from personnel at over twenty armed services facilities to be filed on July 5, 2006, ensuring that the affidavits fully complied with an order of this Court in United Medical Supply Co. v. United States, No. 05-289C (Fed. Cl.). In the upcoming weeks, defendant's counsel also will be required to file defendant's motion for summary judgment in Delpin-Aponte v. United States, No. 05-1043 (Fed. Cl.), and
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formal appellate briefs in Bannum, Inc. v. United States, et. al, No. 06-5066 (Fed. Cir.), and Bolden v. Department of Veterans Affairs, No. 06-3158 (Fed. Cir.). For these reasons, defendant's
counsel has not been able to meet the deadline to which the parties had agreed on June 14, 2006, and defendant's counsel anticipates that defendant's responses will require until August 4, 2006. For the foregoing reasons, defendant requests that the Court grant this motion for an enlargement of time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director s/ Jeffrey S. Pease JEFFREY S. PEASE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 307-0292 Fax: (202) 514-8624 July 13, 2006 Attorneys for Defendant
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CERTIFICATE OF FILING I hereby certify that on this 13th day of July 2006, a copy of the foregoing "DEFENDANT'S OUT OF TIME MOTION FOR AN ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS, PLAINTIFFS' FIRST SET OF INTERROGATORIES, AND PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS ACCOMPANYING ITS NOTICE OF DEPOSITION OF WAYNE COLEMAN" 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. the Court's system. Parties may access this filing through
s/ Jeffrey S. Pease
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EXHIBIT 1
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EXHIBIT 2
Case 1:05-cv-00142-NBF Pease, Jeffrey (CIV)
From: Sent: To: Subject: Attachments:
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Pease, Jeffrey (CIV) Thursday, June 15, 2006 2:48 PM '[email protected]' Requested Letter Re: Moreno Discovery Letter 2006-06-15.pdf
Letter 006-06-15.pdf (56 KB
Mike, Please see the attached letter, which will also be mailed today. Thanks, Jeff Jeffrey S. Pease Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W., Room 12018 Washington, D.C. 20530 (20005 for non-postal deliveries) Tel: (202) 307-0292 Fax: (202) 514-8624
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EXHIBIT 3
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From: Sent: To: Subject: Attachments:
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Pease, Jeffrey (CIV) Friday, July 07, 2006 5:35 PM '[email protected]' Moreno Discovery Letter 2006-07-07.pdf
Letter 006-07-07.pdf (58 KB
Mike, Please see the attached letter regarding the Moreno case, which was also mailed today. Very truly yours, Jeff Jeffrey S. Pease Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W., Room 12018 Washington, D.C. 20530 (20005 for non-postal deliveries) Tel: (202) 307-0292 Fax: (202) 514-8624
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EXHIBIT 4
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From: Sent: To: Subject: Mike,
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Pease, Jeffrey (CIV) Monday, July 10, 2006 5:30 PM '[email protected]' Moreno Discovery Deadline
Thank you for taking the time on the telephone this afternoon to discuss our letter to you on July 7, 2006. I will refrain from filing a motion for an enlargement with the Court pending your anticipated written response to our letter. In the meantime, the Government will proceed as we proposed in our letter, and I hope that in the future, after we have produced our discovery objections in writing, that you and I will attempt to personally sort through any conflicts efficiently to ensure that we understand what specific documents you require, and that you receive meaningful responses to your discovery requests. Very truly yours, Jeff Jeffrey S. Pease Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W., Room 12018 Washington, D.C. 20530 (20005 for non-postal deliveries) Tel: (202) 307-0292 Direct line: (202) 353-7991 Fax: (202) 514-8624
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EXHIBIT 5
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From: Sent: To: Subject: Jeff,
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[email protected] Wednesday, July 12, 2006 4:54 PM Pease, Jeffrey (CIV) Re: Moreno Discovery Deadline
As we discussed on the telephone, I do not consider your July 7, 2006 letter a request for an extension of time to respond to discovery. At your request, I had previously agreed to an extension to Monday, July 10, 2006. That was the day I received your letter indicating that the government would not respond to the Plaintiffs' interrogatories and document requests by the July 10 deadline. Accordingly, I don't consider the letter a request, rather a fiat accompli. I had expected to receive at least any objections to the requests on July 10. While I understand that the government, like any litigant, may have difficulty gathering all the information requested in discovery demands, under the Court's rules, you were obligated to produce at least the objections. If you had, we could deal with those while the government gathered the remaining information. It is my understanding that by not abiding by the date, the government has waived the ability to raise objections to the discovery requests. I look forward to receiving the discovery material. - Mike Sweeney ----- Original Message ----From:
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