Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00543-ECH

Document 122

Filed 11/20/2003

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UNITED STATES COURT OF FEDERAL CLAIMS GOLD LINE REFINING, LTD., through its trustee Ben B. Floyd ) ) ) Plaintiff, ) ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant. ) ) __________________________________ )

No. 98-543C (Judge Hewitt)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO MODIFY THE JUNE 9, 2003 SCHEDULING ORDER TO ENLARGE THE TIME FOR DEFENDANT TO COMPLETE DISCOVERY Pursuant to Rules 6.1 and 7 (b) of the Rules of this Court, Plaintiff, Gold Line Refining, Ltd. (Gold Line) respectfully requests the Court to deny Defendant's request to extend the discovery period until September 5, 2004. Rather, Plaintiff proposes a four-month extension to the discovery schedule, i.e. to April 9, 2004. It is Plaintiff's position that an additional four months should be sufficient for both parties to complete discovery. Counsel for Defendant has advised that the Government does not agree to limit the discovery extension to four months. A. The Parties Are Now Making Substantial Progress in Discovery As discussed in the Government's November 3, 2003 Motion, the Government initially requested that Gold Line produce "all Baker & O'Brien documents that contain a discussion or assumptions as to the value or price of fuel" or "address methodologies for determining the value or price of fuel." Gold Line took the position that the Government's requests were overly broad,

Case 1:98-cv-00543-ECH

Document 122

Filed 11/20/2003

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burdensome and expansive. Responding to the Government's requests would have required Baker & O'Brien to retrieve and review literally hundreds of projects undertaken by that firm during the past ten years. Because Baker & O'Brien prepared these reports for its clients, the Government's request also raised issues of client confidentiality. The parties now have developed a procedure for reviewing the Baker & O'Brien reports. A draft protective order has been prepared and submitted to the Court. Government Counsel (Messrs. Blades and Kaufer) have traveled to Dallas and are currently reviewing a representative sample of the Baker & O'Brien reports in issue. Counsel will select documents from the representative sample, which will be redacted to protect client confidences. The redacted reports then will be provided to Government Counsel. We are confident this will allow the Government to take the depositions of the Baker & O'Brien representatives who participated in the preparation of the Baker & O'Brien report.1 If Government Counsel needs to review additional reports, a procedure to do so will have to be developed. B. Both Parties Should Be Able to Complete Discovery In Four Additional Months. In early November, Gold Line Counsel inspected additional documents at DESC's offices, and marked some of the documents for copying. DESC is in the process of copying them and Gold Line expects to receive these documents shortly. By letter of November 3, 2003, Gold Line Counsel advised Government Counsel that Gold Line wished to depose six of the individuals identified in the Government's discovery responses, i.e., John Cook, Edith Duhaine, Lawrence Ervin, Ben Brockwell, Robert Myrben and Robert Sturtz. Government Counsel responded on November 4, 2003, advising that he would contact these individuals to determine

The Government has indicated that it seeks to depose three former Gold Line employees, Earl Thomas, Anitra North and Clifton Franklin. These depositions do not require any Baker & O'Brien documents. The Government has the relevant information relating to these individuals and could have taken their depositions at any time during the past several months. 2

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Case 1:98-cv-00543-ECH

Document 122

Filed 11/20/2003

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their availability. These depositions can easily be finished by April 9, 2003. Similarly, the Government should be able to review the redacted Baker & O'Brien reports and take the necessary depositions of Baker & O'Brien witnesses, as well as the Gold Line witnesses, by April 9, 2004. CONCLUSION For the foregoing reasons, Gold Line requests that the Court deny the Government's request for a nine-month extension of the discovery schedule and grant Plaintiff's request for a fourmonth extension, i.e., to April 9, 2003. Respectfully submitted, BASTIANELLI, BROWN & KELLEY, CHTD. s/ Ronald H. Uscher Two Lafayette Center 1133 21 Street, N.W., Suite 500 Washington, DC 20036 (202) 293-8815 (202) 293-7994 (Fax) Of Counsel: Donald A. Tobin, Esquire Lori Ann Lange, Esquire Bastianelli, Brown & Kelley, Chtd. Two Lafayette Center, Suite 500 Washington, DC 20036 (202) 293-8815 (202) 293-7994 (Fax) Dated: November 20, 2003

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