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

Case 1:98-cv-00868-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS L.P. CONSULTING GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-868C (Judge Allegra)

JOINT STATUS REPORT AND MOTION FOR ENLARGEMENT OF DISCOVERY Pursuant to the Court's order, dated December 23, 2003, the parties file this joint status report and respectfully request that the Court grant an enlargement of the discovery period of approximately three months from July 1, 2004 to October 1, 2004. Pursuant to the Court's December 23, 2003 order, discovery is currently scheduled to end on July 1, 2004. Previously discovery in this matter was stayed from July 26, 2000 to January 28, 2002 due to a criminal investigation which could impact this litigation. See Orders staying discovery,

dated July 26, 2000, October 12, 2000, January 31, 2001, and November 30, 2001. The criminal matter has been assigned to Assistant United States Attorney Bart Huff in the Chicago Office of the United States Attorney. The criminal investigation, which led to the

stay of discovery in this case, also resulted in the criminal conviction of Andrew Fernandez. Mr. Fernandez operated a Mr. Fernandez,

business named A.M. Fernandez and Associates.

through his business, had entered into a contract with the United States Postal Service. On March 9, 2004, Mr. Fernandez entered a

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plea of guilty to one count of making a false statement on an income tax return in violation of 26 U.S.C. § 7206(1). On May

27, 2004, Mr. Fernandez was sentenced to be imprisoned for a total term of four months and to payment of a fine in the amount of $5,000.00. See generally, United States v. Fernandez , Case

No. 04-CR-153-ALL, N.D. Ill. Following the sentencing of Mr. Fernandez, the parties in this case conducted depositions in Chicago, IL, on June 9-11, 2004. Plaintiff deposed Samuel Southern, a U.S. Postal Service

employee; Robert A. Rigsby, a former U.S. Postal Service employee and contracting officer; Jessie McNabb, a contract employee; and Mr. Fernandez. Defendant deposed Richard Bittaglin, who, Mr. Bittaglin is

together with his wife, operates LP Consulting.

the Secretary/Treasurer and project superintendent for LP Consulting. The parties have made their best efforts to complete discovery by the July 1, 2004 deadline. However, some discovery

matters could not be completed by the July 1, 2004 deadline. Defendant needs to review documents that previously had been in the custody of Friedman, Sinar & Rohlfing, the attorneys that previously represented LP Consulting. Plaintiff's counsel is

conducting a review of those documents before making them available for review by defendant. Defendant also needs to issue

requests for admissions and related interrogatories and document requests to clarify the factual basis for this lawsuit. Defendant also may file a motion to dismiss plaintiff's defacto - 2 -

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debarment allegation because it has not previously been the subject of a request for a final decision of the contracting officer. In addition, four boxes of documents are available for plaintiff's review and inspection at the offices of defendant's counsel in Washington, D.C. These documents include the personal

diaries of Samuel Southern which Mr. Southern previously produced at his deposition on June 9, 2004, in Chicago, IL, but which could not be reviewed expeditiously at that time. These

documents also include U.S. Postal Service original documents that previously had been in the custody of the U.S. Postal Inspection Service because of the criminal investigation. Plaintiff reserves the right to recall the previously named deponents to address any of the documents that are available for plaintiff's review as discussed in this paragraph. Defendant

believes that plaintiff does not have any such right to recall any of the previously named deponents. Plaintiff also wishes to depose Carl Puricelli, a special agent in the Office of the Inspector General for the U.S. Postal Service, in St. Louis, MO. Defendant is informed that Mr.

Puricelli had access to grand jury information relating to the criminal investigation. It is defendant's position that Mr.

Puricelli will not testify to any "matters occurring before the grand jury" because it would violate Federal Rule of Criminal Procedure Rule 6(e)(2). By letter dated February 25, 2004, the

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Government informed plaintiff that, "with regard to other matters that relate to the Government's investigation but do not fall within Rule 6(e), the Government will assert the work product and investigatory privileges." With regard to matters that relate to

the Government's investigation but which are not covered by Rule 6(e), the Government will assert the deliberative process privilege, as well as work product and investigatory privileges because, among other things, the Government's investigation remains open with regard to possible administrative sanctions. Prior to receiving a draft of this joint status report and motion for enlargement of discovery, LP Consulting was neither familiar with, not informed of any "possible administrative sanctions." LP Consulting reserves the right to dispute the

Government's assertion of any privilege, including deliberative process, work product or investigatory privilege, and maintains that Mr. Puricelli possesses information material to LP Consulting's case, and his deposition may lead to the discovery of admissible evidence.

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Accordingly, the parties require an enlargement of time from July 1 to October 1, 2004, to resolve these discovery matters. Therefore, the parties respectfully request that the Court grant this motion and allow an enlargement of the discovery period from July 1, 2004 to October 1, 2004. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/Brian Cohen BRIAN COHEN Bell, Boyd, & Lloyd 1615 L. Street, N.W. Suite 1200 Washington, D.C. 20036 Tele: (202) 466-6300 Fax: (202) 463-0678 Attorney for Plaintiff DAVID M. COHEN Director

/s Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director /s Domenique Kirchner DOMENIQUE KIRCHNER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street N.W. Washington, D.C. 20530 Tele: (202) 307-0290 Fax: (202) 514-8624 Attorneys For Defendant

July 1, 2004

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on this 1st day of July, 2004, I caused to be placed in the United States mail (first class mail, postage prepaid) copies of the foregoing "JOINT STATUS REPORT AND MOTION FOR ENLARGEMENT OF DISCOVERY" addressed as follows: BRIAN COHEN Bell, Boyd, & Lloyd 1615 L. Street, N.W. Suite 1200 Washington, D.C. 20036 S/Domenique Kirchner