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

Case 1:96-cv-00408-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INNOVAIR AVIATION LIMITED, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 96-408C (Judge Smith)

DEFENDANT'S EMERGENCY MOTION IN LIMINE OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO TAKE DEPOSITION OF PLAINTIFF'S EXPERT AND DEFENDANT'S MOTION TO MODIFY COURT ORDER REGARDING DEFENDANT'S PRETRIAL FILINGS AND THE COURT'S PRETRIAL CONFERENCE Defendant, the United States, respectfully requests, in limine, that the Court preclude from the trial currently scheduled to commence on October 16, 2007, any opinion testimony of plaintiff's expert, Mr. Arthur H. Cobb, that was not reported to the Government by May 1, 2007, in Mr. Cobb's expert report. In the alternative, defendant respectfully requests that the Court enter an order granting the Government leave to take a supplemental deposition of Mr. Cobb on October 1, 2007, in Washington, D.C., based upon Mr. Cobb's September 17, 2007, Supplemental Report of Cobb & Associates, Ltd. In addition, defendant respectfully requests that the Court grant the Government a seven day enlargement of time, from September 28, 2007, until October 5, 2007, to file its pretrial documents pursuant to Appendix A ¶¶ 14, 15, and 16. Defendant also respectfully requests that the Court change the date of the pretrial conference that is currently scheduled to occur on October 4, 2007, at 3:00 p.m., to some other date during the week of October 9 through 12, 2007. Defendant has attempted to confer with plaintiff's counsel of record regarding our request for enlargement of time by calling Mr. Ty Cobb and leaving a voice mail message, but Mr. Cobb did not return the telephone call of the Government counsel by the time that we filed this brief.

Case 1:96-cv-00408-LAS

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Finally, defendant respectfully requests that the Court give expedited consideration to the Government's motion. STATEMENT OF FACTS On March 12, 2007, the Court entered a scheduling order in which it established the pretrial schedule in this case. The Court provided that fact discovery would continue through June 29, 2007, and that expert discovery would commence on May 1, 2007. In paragraph 3 of the scheduling order, it states: On or before May 1, 2007, the Plaintiff will submit to the Defendant all expert reports in the manner and form required by Rule 26(a)(2), including all supporting documentation, spreadsheets, calculations, and formulas supporting damages calculations and spreadsheet, in hard copy and electronically. . . . Plaintiff's expert, Mr. Arthur Cobb, prepared an expert report which plaintiff's counsel sent to the Government by email message during the evening on May 1, 2007. The May 1, 2007 Cobb report identifies three possible scenarios for the calculation of damages. The Government deposed Mr. Cobb on June 19, 2007.1 At no time during the course of his deposition did Mr. Cobb suggest that he was planning on or even considering preparing a supplemental report in which he would propose a fourth alternative to his calculation of damages. The Government's three experts submitted their expert reports on July 9, 2007, pursuant to the Government's request to postpone the due date of their reports because the depositions of plaintiff's experts could not be scheduled until the second half of June 2007. The depositions of

Mr. Cobb's deposition was originally scheduled to occur on June 14, 2007. However, at the last minute, plaintiff's counsel requested that Mr. Cobb's deposition be postponed because Mr. Cobb was scheduled to testify in another trial on June 14, 2007. -2-

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the Government's experts took place on July 25, 26, and August 8, 2007.2 On September 18, 2007, while counsel for the Government was out of town on travel, plaintiff's counsel sent to the Government a Supplemental Report of Cobb & Associates, Ltd., dated September 17, 2007. Plaintiff provided no warning that it intended to serve a supplemental report upon the Government. Plaintiff also did not provide any explanation as to why it was serving a supplemental report upon the Government after the close of discovery and after plaintiff had filed its pretrial brief and shortly before the Government was due to file its pretrial brief. The letter accompanying Mr. Cobb's supplemental report merely stated, "Please find enclosed the September 17, 2007, Supplemental Report of Cobb & Associates, Ltd." On page 3 of his 10-page supplemental report, Mr. Cobb states: Hogan & Hartson, L.L.P. has requested that we provide an analysis and calculation of the lost expectancy interest value (including calculation of sales, cost of goods sold, marketing expenses and general and administrative expenses) limited to sales under, and pursuant to the terms of, the July 25, 1991 Distributor Agreement between Innovair and United Technologies Corporation (the Distributor Agreement). Such information is set forth in this Supplemental Report, which should be read in conjunction with the May Report. In the subsequent pages of the report, Mr. Cobb explains a new measure of damages that is dependent upon expected sales under a 1991 Distributorship Agreement between the Innovair Aviation Ltd. (Innovair) and United Technologies Corporation (UTC). The supplemental report includes calculations of anticipated costs of goods sold, selling and marketing expenses, and a number of subcategories of general and administrative expenses. The supplemental report does

The Government proffered Mr. Ernest Arvai for a deposition during the week of July 16 through 19, 2007, in Washington, D.C., or during the last week of July in Boston, but plaintiff's counsel elected to depose Mr. Arvai on August 8, 2007. -3-

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explain why Mr. Cobb decided to issue a supplemental report at this late date in the proceedings. ARGUMENT In the Federal courts, "[d]iscovery rules are to be broadly and liberally construed in order to fulfill discovery's purpose of providing both parties with "information essential to the proper litigation of all relevant facts" and "to eliminate surprise" at trial. Rolscreen Co. v. Pella Products of St. Louis, Inc., 145 F.R.D. 92, 94 (S.D. Iowa 1992). This liberal construction ensures that discovery "together with pretrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). The rules of this Court are designed to eliminate this kind of surprise that plaintiff has sprung upon the Government with the submission of Mr. Cobb's last-minute supplemental expert report. The Court's March 12, 2007 scheduling order, as amended, provided for the orderly succession of discovery in which the plaintiff presented its expert reports prior to the time the Government submitted its expert reports. Plaintiff's submission to the Government of its supplemental expert report on the eve of trial with very little time for the Government to absorb plaintiff's supplemental report, let alone react to it, is contrary to the principles of a fair practice. Given the egregiousness of plaintiff's untimely submission of its supplemental expert report, we respectfully request that the Court enter an order precluding plaintiff from introducing through Mr. Cobb any testimony or evidence other than that which is represented in Mr. Cobb's May 1, 2007 expert report. In the alternative, to avoid prejudice and unfair surprise to the Government at trial, fundamental fairness requires that the Government be permitted to redepose Mr. Cobb concerning his supplemental report at plaintiff's expense in Washington, D.C.,

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on October 1, 2007. Counsel for the Government has already scheduled out-of-town trips to prepare its witnesses for trial in this case on September 27 and 28, 2007, and October 2 and 3, 2007. Scheduling the deposition of Mr. Cobb prior to September 27, 2007, would be fundamentally unfair because counsel for the counsel for the Government would not have sufficient time to prepare for Mr. Cobb's supplemental deposition. In addition, defendant requests that the due date of its pretrial filings, pursuant to Appendix A, ¶¶ 14, 15, and 16, be postponed by one week, from September 28, 2007, until October 5, 2007, so that the Government has sufficient time in preparing its brief to react to the Court's order, whatever the Court decides to do. Moreover, given the Government's request to postpone the filing of its pretrial documents by one week, we respectfully request that the Court reschedule its pretrial conference, which is currently scheduled to occur on October 4, 2007, at 3:00 p.m., until some time during the week of October 9 through 12, 2007. Finally, we respectfully request that the Court consider our motion upon an expedited basis. For the foregoing reasons, we respectfully request that the Court grant our motion. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

/s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

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/s/ Sheryl L. Floyd SHERYL L. FLOYD Senior Trial Counsel BRIAN T. EDMUNDS Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8278 Attorneys for Defendant SEPTEMBER 19, 2007

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CERTIFICATE OF FILING I hereby certify that on this 19th day of SEPTEMBER, 2007, a copy of this "DEFENDANT'S EMERGENCY MOTION IN LIMINE OR, IN THE ALTERNATIVE, MOTION FOR LEAVE TO TAKE DEPOSITION OF PLAINTIFF'S EXPERT AND DEFENDANT'S MOTION TO MODIFY COURT ORDER REGARDING DEFENDANT'S PRETRIAL FILINGS AND THE COURT'S PRETRIAL CONFERENCE" was filed e1ectronicaly. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing, through the Court's system.

/s/ Sheryl L. Floyd