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

Case 1:96-cv-00166-EJD

Document 285

Filed 08/12/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 96-166 C Chief Judge Edward J. Damich

ZOLTEK=S UNOPPOSED MOTION TO EXTEND THE CLOSE OF DISCOVERY SIX (6) MONTHS Plaintiff, Zoltek Corporation (hereinafter "ZOLTEK"), respectfully moves this Court for an Order to extend the close of fact discovery six (6) months from September 30, 2005 to and including March 30, 2006. On or about August 1, 2005,Zoltek, together with Defendant, the United States ("U.S.") contacted the Clerk of the Court by telephone regarding the present Motion. In that conference, the U.S. stated that it has no objection to the requested extension. The basis for the present Motion is set forth below. FACTUAL BACKGROUND/STATUS REPORT Following the issuance of this Court's Order on June 16, 2005, denying Zoltek's Motion to Show Cause Why Northrop Grumman Corp. ("Northrop") Should Not Be Held In Contempt of Court, Zoltek undertook the following activities. First, Zoltek serially subpoenaed two (2) separate production studios and individuals affiliated therewith who were believed responsible for preparing the videotape entitled "Stealth Technology" for the History Channel. The first contacted studio stated that they did not have the materials and information that Zoltek requested. The second studio objected to the production of the documents requested by Zoltek based on the First Amendment. Zoltek withdrew its

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subpoenas, but reserved its right to reserve the subpoenas at a future date. Following withdrawal of the subpoenas, Zoltek served the U.S. with additional interrogatories and document requests directed to the identification and production of all documents provided by the Government to third parties to assist in any documentaries pertaining to the B-2 Bomber as well as any other weapon system possessing Stealth capability. Zoltek has been in communication with counsel for Lockheed Martin Corp. ("Lockheed") for the purpose of scheduling depositions for persons knowledgeable regarding the use of partially carbonized fibers on the prototype YF-22 Fighter Plane. Documents previously

produced by Lockheed to Zoltek and the U.S. clearly establish that partially carbonized fibers were used in developing the YF-22 prototype. The partially carbonized fibers tested by

Lockheed were produced by BASF and Stackpole Fibers Corporation, which was subsequently purchased by Zoltek. Zoltek believes that the information obtained from the witnesses in these depositions will lead to substantial additional discovery in this case. The depositions will, in all probability, be set for the week of September 19, 2005. Finally, on August 4, 2005, Zoltek filed a motion and supporting memorandum to modify the Court's Order of April 13, 2004 to permit Zoltek to take the videotape depositions of two (2) Northrop employees, George Rogers and Michael Capoccia, limited to all information pertaining to the purchase of partially carbonized fibers by Northrop. Consistent with the Court's Order of April 13, 2004, Zoltek will avoid questions during the depositions pertaining to the use of the partially carbonized fibers on the B-2 Bomber. Zoltek and the U.S. have conferred regarding the scheduling in the fall of 2005 an inspection by Zoltek's expert of the carbon fiber sheet products in the U.S.'s possession in Washington, D.C. On the same upcoming trip, Zoltek will make available the named inventor of

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the patent-in-suit, George P. Boyd, for a two (2) hour completion of his deposition consistent with the Court's previously issued order. The requested extension is not for the purpose of delay, but to continue Zoltek's ongoing effort to obtain the information relevant to this litigation. CONCLUSION For the above stated reasons, Zoltek respectfully moves this Court for a six (6) month extension of time for the close of fact discovery, to and including, March 30, 2006. Respectfully submitted, Dated: August 12, 2005 s/Dean A. Monco Dean A. Monco, Esq. John S. Mortimer, Esq. WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street, Suite 3800 Chicago, Illinois 60661-2511 Tel.: (312) 876-1800 Fax: (312) 876-2020 Counsel for Plaintiff Zoltek Corporation

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CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing documents entitled: Zoltek=s Unopposed Motion To Extend The Close Of Discovery Six (6) Months have been served by Telefax and First Class U.S. Mail to attorneys for Defendant, the United States, this 12th day of August, 2005, at the following address: Gary L. Hausken, Esq. United States Department of Justice Commercial Litigation Branch - Civil Division 1100 L Street, N.W. Room 11114 Washington, D.C. 20005

s/Dean A. Monco Dean A. Monco John S. Mortimer Counsel for Plaintiff Zoltek Corporation