Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:00-cv-00169-ECH

Document 228

Filed 08/29/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE NATION AND/OR TRIBE OF INDIANS OF OKLAHOMA, ) ) ) Plaintiff, ) ) ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Electronically Filed August 29, 2005 No. 00-169 L Judge Emily C. Hewitt

OSAGE NATION'S MOTION FOR MODIFICATION OF APRIL 15, 2005 SCHEDULING ORDER I. Introduction and Summary Plaintiff Osage Nation hereby files this motion for modification of the deadlines in the June 20, 2005 Order concerning the filing of expert reports and related discovery. Specifically, the Osage Nation requests that those filing deadlines be extended by three weeks to provide the experts retained by the Osage Nation with adequate time to review materials that have only recently been produced in discovery, including documents that were located as a result of the parties' joint search of the American Indian Records Depository ("AIRR") and transcripts of depositions that occurred at the end of the discovery period. The grant of this motion would not extend any other deadline, including but not limited to, the current trial setting. II. Background On April 15, 2005, the Court issued a Scheduling Order for this case setting a July 1, 2005 deadline for completing fact discovery. On June 16, 2005, the parties filed a joint motion requesting that that deadline be extended for two months, in part so that the parties could conduct

Case 1:00-cv-00169-ECH

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a joint search at the AIRR for documents relevant to tranche one issues. By Order dated June 20, 2005, the Court granted the parties' joint motion. During the last two months, the parties completed their joint search and identified a number of additional documents for copying. This process was carried out in a cooperative manner by both parties, with a joint team of 10 ­ 15 document reviewers working together to review hundreds of boxes containing potentially responsive documents. The Government copied those documents on an expedited basis and produced electronic images in several installments between August 10, 2005 and August 24, 2005. During the last several days, the Osage Nation has taken a number of 30(b)(6) depositions. Those depositions provided the Osage Nation with its first opportunity to examine employees of the BIA on a number of critical issues, including the meaning of the documents that were located at AIRR as a result of the parties' joint search. One of those depositions was of Mr. Greg Chavarria, who was produced on August 16 and 17 as the Government's 30(b)(6) designee regarding an accounting "reconciliation" project that was performed for BIA by Arthur Andersen & Co. That reconciliation project covered the over twenty-year period from July 1, 1972 through September 31, 1992 and thus includes all the tranche one months. The exhibits to Mr. Chavarria's deposition include over nineteen notebooks of accounting statements and supporting detail related to Arthur Anderson's review of Osage accounting records. Due to the volume and complexity of the material, the Osage Nation continued Mr. Chavarria's deposition for an additional day, to September 1, 2005. The Government has objected to continuing the deposition.

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III.

Good Cause Exists For Granting This Motion Good cause exists for granting a three week extension of time for the deadlines to file

expert reports and complete expert discovery. Under the current Scheduling Order, the Osage Nation must file any expert reports on or before September 15, 2005. That deadline, however, does not provide the Osage Nation's experts adequate time to review the nineteen volumes of accounting detail that were recently explained by Mr. Chavarria or the documents that were produced as a result of the parties' join search at AIRR. In addition, the current schedule does not provide sufficient time for the experts to review the transcripts of the approximately six depositions that were conducted in the last two weeks prior to September 1 discovery cut-off date, including in particular the anticipated continuation of Mr. Chavarria's deposition on September 1, 2005. Additional time is also needed to locate records at the Oklahoma Tax Commission ("OTC"). Although the joint search of the parties at AIRR produced some additional documents, the parties were not able to locate all of the Osage Agency documents that are relevant to the tranche one claims. As a result, the Osage Nation has been attempting to locate other information relevant to those claims, including documents from the OTC concerning the volumes of crude oil and natural gas produced from the tranche one leases for the tranche one months. Although its request to the OTC was made several weeks ago, the Osage Nation has not yet received all the records it is seeking from the OTC. Because extending the deadline for expert reports and expert discovery does not affect any other pre-trial or trial deadlines, granting this extension would not effect the Court's trial calendar or prejudice the parties. Accordingly, the Osage Nation seek only the following modification of the Schedule Order.

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Current Deadline Plaintiff's Expert Report Defendant's Expert Report Plaintiff Rebuttal Expert Discovery Cut Off September 15, 2005 October 20, 2005 November 10, 2005 December 1, 2005

Proposed Deadline October 6, 2005 November 10, 2005 December 1, 2005 December 22, 2005

Counsel for the Osage Nation has discussed this Motion with counsel for the United States. The United States will indicate whether it opposes this Motion or not after reviewing the Motion as filed. IV. Conclusion For the foregoing reasons, the Osage Nation respectfully request that the Court's April 15, 2005 Scheduling Order be modified as discussed above.

Respectfully submitted,

s/Wilson K. Pipestem WILSON K. PIPESTEM Pipestem Law Firm, P.C. 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 419-3526 Fax: (202) 659-4931 [email protected] Attorney for Plaintiff Osage Nation Dated August 29, 2005

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