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

Case 1:95-cv-00524-GWM

Document 426

Filed 11/08/2007

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ HOMER J. HOLLAND, ) HOWARD R. ROSS, and ) FIRST BANK, ) ) Case No. 95-524C Plaintiffs, ) ) (Judge George W. Miller) v. ) ) (Winstar-Related Case) THE UNITED STATES, ) ) Defendant. ) ____________________________________) DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO DEPOSE PHILIP GERBICK Pursuant to Rules 7(b), 7.2(a) of the Rules of the Court of Federal Claims ("RCFC"), Winstar Procedural Order No. 2, and this Court's order of October 31, 2007, defendant, the United States, respectfully submits this opposition to plaintiffs' motion for leave to take the deposition of Philip Gerbick. Fact discovery in this case began on August 23, 1999. On September 20, 1999, we filed our initial disclosures, pursuant to paragraph IV(A)(1) of the Winstar Discovery Plan. See Ex. 1. Within those disclosures we identified Mr. Gerbick as a witness who had "discoverable information relevant to allegations in plaintiffs' complaint." Id. at 1. Further, we indicated that Mr. Gerbick might testify regarding the acquisitions of Galva, Home, and Mutual, and the acquisition of Peoria. Id. at 5. Although fact discovery was scheduled to be completed within one year, the parties stipulated to extend the discovery period until until December 15, 2000, so that the parties could complete depositions of several witnesses. Order (Sep. 25, 2000); Joint Stipulation to Adjust Certain Discovery Deadlines (filed Sep. 20, 2000) at 1. Notwithstanding

Case 1:95-cv-00524-GWM

Document 426

Filed 11/08/2007

Page 2 of 5

that they sought to extend discovery period to depose additional witnesses, plaintiffs expressed no desire to depose Mr. Gerbick. Now, after twelve years of litigation, and seven years after fact discovery, plaintiffs contend that they are entitled to depose Mr. Gerbick. Plaintiffs concede that paragraph 13 (b) of Appendix A of the Rules of this Court states that "any witness whose identity has not been previously disclosed shall be subject to discovery[,]" and assert, nonetheless, that "though Mr. Gerbick's identity was disclosed eight years ago, Plaintiffs had no reason to anticipate his involvement in the upcoming damages trial." Pl. Br. at 2. Thus, plaintiffs argue that even though Mr. Gerbick was expressly identified, more than eight years ago, as a witness who might testify for the Government in this litigation, plaintiffs somehow did not appreciate that he might testify for the Government in this litigation. Plaintiffs further contend that they were excused from deposing Mr. Gerbick because he did not submit a declaration in support of our summary judgment briefing, and therefore, they did not believe that he would testify at trial. Pl. Br. at 1-2. This argument strains credulity: Motions for summary judgment were submitted after the close of discovery. Plaintiffs' election not to depose Mr. Gerbick during the discovery period cannot possibly be tied to events that occurred after that time. However implausible, plaintiffs' proffered excuses for electing not to depose Mr. Gerbick are irrelevant. The Rules of this Court do not require a determination of whether or not a party has "a reason to anticipate [a witness's] involvement" in a trial." Pl. Br. at 2. Rather, paragraph 13(b) of Appendix A permits a deposition only where a witness's identity, "has not been previously disclosed[.]" We disclosed Mr. Gerbick's identity in 1999, and he will testify relating -2-

Case 1:95-cv-00524-GWM

Document 426

Filed 11/08/2007

Page 3 of 5

to matters identified in that disclosure. Accordingly, the Rules of this Court do not permit plaintiffs an opportunity to depose him. As this Court held in Smith v. United States, No. 92-540 C (Fed. Cl.), "[p]laintiffs cannot now reopen the discovery period to conduct the depositions that could have been, and conceivably should have been, taken." Id. (Order of Dec. 8, 2000) (Exhibit 2) (denying plaintiffs' motions to reopen discovery and conduct the deposition of a witness where it was "obvious" that the witness was "conceivably a person with relevant information"). Plaintiffs' reliance upon an order in Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 100-02 (2004), is misplaced. In that case, the Court denied plaintiffs' motion to preclude two Government witnesses from presenting trial testimony because plaintiffs were not prejudiced due to the fact that they could depose the witnesses prior to trial pursuant to RCFC Appendix A, paragraph 13(b). In Globe, unlike this case, the two witnesses were not disclosed in either party's initial disclosures, and did not come to the attention of the parties through the documents produced in discovery. Id. By contrast, in this case, Mr. Gerbick's identity was disclosed in the initial disclosures, and Mr. Gerbick's name appeared in numerous documents that were exchanged during fact discovery. In this case, unlike Globe, plaintiffs knowingly waived their opportunity to depose Mr. Gerbick. Finally, the equities favor holding plaintiffs accountable for their election not to depose Mr. Gerbick during the discovery period. Mr. Gerbick is currently an employee at the Chicago office of the Office of Thrift Supervision, and carries a full schedule of meetings, in and out of Chicago, in November and December. Plaintiffs' decision to wait until the eve of trial to seek to depose Mr. Gerbick would significantly disrupt his schedule. Further, we would be required to dedicate our resources to preparing Mr. Gerbick for deposition, and defending his deposition, on -3-

Case 1:95-cv-00524-GWM

Document 426

Filed 11/08/2007

Page 4 of 5

the eve of trial, and would be bearing the cost for plaintiffs' election not to depose Mr. Gerbick. The Court should not permit plaintiffs to circumvent the Rules of this Court, and disrupt the schedules of both Mr. Gerbick and the Government's counsel, merely because they now realize that their strategic decision in 1999 was in error. CONCLUSION For the foregoing reasons, we respectfully request that this Court deny plaintiffs' motion for leave to reopen discovery to conduct out-of-time depositions of Mr. Gerbick. Respectfully submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

Of Counsel: SCOTT D. AUSTIN ELIZABETH A. HOLT WILLIAM G. KANELLIS AMANDA L. TANTUM JOHN J. TODOR SAMEER YERAWADEKAR

/s/ John H. Roberson JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, D.C. 20530 Tele: (202) 353-7972 Fax: (202) 514-8640 Attorneys for Defendant

-4-

Case 1:95-cv-00524-GWM

Document 426

Filed 11/08/2007

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 8TH day of November, 2007, a copy of "DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO DEPOSE PHILIP GERBICK" was filed electronically. 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/ John H. Roberson John H. Roberson