Free Order on Motion to Strike - District Court of Federal Claims - federal

Case 1:95-cv-00829-TCW

Document 238

Filed 04/04/2007

Page 1 of 2

In the United States Court of Federal Claims
No. 95-829C (Filed: April 4, 2007) ************************************* * * STERLING SAVINGS ASSOCIATION, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************* * ORDER On March 2, 2007, Plaintiff filed a motion to strike the Government's "undisclosed witnesses." Construing a string of prior discovery and disclosure orders beginning with Procedural Order No. 2 in 1997, Plaintiff asserts that Defendant did not timely disclose its intention to call David Kroeger and John W. Stone as fact witnesses, or its intention to call W. Barefoot Bankhead as an expert witness. In addition, Plaintiff complains that two of Defendant's previously disclosed expert witnesses, Joe A. Hargett and Dr. William G. Hamm, have impermissibly modified and expanded their expert reports. Plaintiff requests the Court to bar Messrs. Kroeger, Stone, and Bankhead from testifying, and to strike the new expert reports submitted by Mr. Hargett and Dr. Hamm. Plaintiff states that it first learned of the new fact witnesses on December 5, 2006, and of the new expert witness and modified reports on February 15, 2007. In support of its motion, Plaintiff has filed a memorandum of law accompanied by a 183-page appendix of relevant documents. Trial is to begin on June 25, 2007 in Spokane, Washington. Defendant filed a March 19, 2007 opposition to Plaintiff's motion, arguing that Defendant has complied with all prior discovery and disclosure requirements, has supplemented earlier responses where necessary, and has provided ample notice of its intention to call the above-named witnesses. Defendant states that the new expert reports

Case 1:95-cv-00829-TCW

Document 238

Filed 04/04/2007

Page 2 of 2

of Mr. Hargett and Dr. Hamm are in response to the December 11, 2006 reports filed by Plaintiff's experts, Dr. Paul Horvitz and Professor Christopher James. On April 2, 2007, Plaintiff filed a reply in support of its motion, along with 80 additional pages of appended materials. Plaintiff objects to the Government's attempt "to roll a Trojan horse into trial" (reply at 1), and to the Government's "late ambushes" (id at 2) after Plaintiff has complied strictly with all deadlines and limitations. The Court has carefully reviewed the parties' positions, and sees merit in the contentions of both sides. The arguments to a great degree are the product of the lengthy history of this case predating its June 1, 2006 transfer to the undersigned. Previous discovery orders and deadlines undoubtedly were imposed with the expectation that trial would begin sooner than June 2007. Under the circumstances, the Court is compelled to reach an accommodation that is as fair as possible to both Plaintiff and Defendant. Accordingly, the Court will allow the testimony at trial of Messrs. Kroeger, Stone, and Bankhead, and will accept the modified expert reports of Mr. Hargett and Dr. Hamm. In these respects, Plaintiff's motion to strike the Government's "undisclosed witnesses" is DENIED. Plaintiff, however, is granted leave to take depositions of these five witnesses at a mutually convenient time and location, and to amend any of its pretrial filings 1 as necessitated by these depositions, from the date of this Order until Friday, June 8, 2007. Either party may contact the Court for assistance, if necessary, regarding the scheduling or conduct of these depositions. IT IS SO ORDERED. s/Thomas C. Wheeler THOMAS C. WHEELER Judge

"Pretrial filings" refers to Plaintiff's Memorandum of Contentions of Fact and Law, Exhibit List, and Witness List.

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