Free Motion for Order - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-0665 RPM DAVID HELLER, Individually and on behalf of all others similarly situated, Plaintiff, v. QUOVADX, INC., LORINE R. SWEENEY and GARY T. SCHERPING, Defendants. ********************************* Civil Action No. 04-cv-1006 RPM SPECIAL SITUATIONS FUND III, L.P., SPECIAL SITUATIONS CAYMAN FUND, L.P., SPECIAL SITUATIONS TECHNOLOGY FUND NEW, L.P., AND SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P., on behalf of themselves and others similarly situated, Plaintiff, v. QUOVADX, INC., LORINE R. SWEENEY, GARY T. SCHERPING, JEFFERY M. KRAUSS, FRED L. BROWN, J. ANDREW COWHERD, JAMES B. HOOVER, CHARLES J. ROESSLEIN and JAMES A. GILBERT, Defendants.

DEFENDANT QUOVADX, INC.'S REQUEST FOR ENTRY OF THE [PROPOSED] CONSOLIDATED SCHEDULING ORDER

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Defendant Quovadx, Inc. ("Quovadx" or the "Company") respectfully submits this request that the Court issue a Consolidated Scheduling Order for the above-referenced matters, establishing a coordinated pretrial and discovery schedule in these cases as anticipated by the Court's Order Denying Lead Plaintiff's Request To Amend The Second Revised Scheduling Order, entered July 22, 2005 (the "June 22 Order"). CERTIFICATION PURSUANT TO D.C.COLO.LCIVR 7.1(A) The undersigned certify that counsel for the Company has conferred with counsel for all other parties and that all parties concur with this request and the terms set forth in the [Proposed] Consolidated Scheduling Order, filed herewith. 1. On July 22, 2005, the Court issued an Order denying lead plaintiff David Heller's

request for a December trial date in the matter of Heller v. Quovadx, Inc., Lorine Sweeney and Gary Scherping, No. 04-cv-00665 RPM (the "Section 10(b) Action"). In so ruling, this Court explained that revising the schedule in the Section 10(b) Action would be improper because "discovery in [the Section 10(b) Action] and in Civil Action No. 04-cv-1006 RPM will be consolidated and a joint scheduling conference in both actions after lead counsel has been selected and approved in Civil Action No. 04-cv-10006-RPM, is anticipated." June 22 Order at 1. Since the issuance of the June 22 Order, the Court appointed a lead plaintiff and lead plaintiff's counsel in the matter now styled Special Situations Fund III, LLP, et al v. Quovadx, Inc., et al., No 04-cv1006-RPM (the "Section 11 Action"). See June 29 Order and August 1 Order. 2. At present, there is no scheduling order in connection with the Section 11 Action.

The Section 10(b) Action is managed by the January Scheduling Order, which was entered more than eight months ago. The January Scheduling Order presently calls for fact discovery in the Section 10(b) Action to conclude in December 2005, expert discovery to conclude in February 2006, and dispositive motions to be filed in April 2006. 3. The January Scheduling Order is not adequate to accommodate the added demands

of the Section 11 Action. It contains no provisions for the Section 11 Action and fails to contemplate coordinated discovery between the actions as called for by this Court. In addition, the 2

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present dates set by the January Scheduling Order are impractical when applied to the Section 11 Action. For example, the fact discovery cutoff for the Section 10(b) Action in the January Scheduling Order is in December 2005, which will be only four months after the approval of lead counsel in the Section 11 Action and before the Court has had an opportunity even to certify a class in the Section 11 Action. This fast-approaching deadline may not allow sufficient time for the Section 11 plaintiff to "catch up" with the ongoing discovery proceedings in the Section 10(b) Action.1 Moreover, given that certain third-party witnesses and documents relevant to this action are based outside the United States in India, the impending discovery deadline may not allow adequate time for the parties to obtain the needed international discovery. 4. In order to effectuate the coordination and consolidation of discovery called for by

the Court's June 22 Order, the parties have agreed to a [Proposed] Consolidated Scheduling Order, submitted herewith. The [Proposed] Consolidated Scheduling Order provides for discovery in the Section 11 Action to proceed in a manner consistent with the three-stage discovery ordered for the Section 10(b) Action. First, it provides that the lead plaintiff in the Section 11 Action shall file a motion for class certification on or about November 1, 2005 and that the parties be allowed to conduct class-related discovery prior to defendants' opposition, if any, to that motion. Second, it provides that coordinated fact discovery for all actions should conclude by February 28, 2006, postponing the fact discovery deadline in the Section 10(b) Action by just three months. Third, it provides that all parties shall serve expert witness disclosures no later than April 26, 2006. 5. The [Proposed] Consolidated Scheduling Order will have the added benefit of

allowing the parties to proceed simultaneously and efficiently toward a coordinated global mediation. As Quovadx has previously represented to the Court, defendants wish to pursue such a mediation and believe that a coordinated schedule will help facilitate the preparedness of the parties to come together for a productive mediation proceeding.
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Quovadx notes that it has already produced to counsel for the lead plaintiffs in both actions a total of 349,445 pages of documents.

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6.

For these reasons, the parties submit the [Proposed] Consolidated Scheduling Order. DILL, DILL, CARR STONBRAKER & HUTCHINGS Professional Corporation By:/s/ Adam P. Stapen Adam P. Stapen 455 Sherman Street, Suite 300 Denver, Colorado 80203 (303) 777-3737 Counsel for Defendants Quovadx, Inc., Jeffery M. Krauss, Fred L. Brown, J. Andrew Cowherd, James B. Hoover, Charles J. Roesslein and James A. Gilbert

Dated: November 2, 2005

Of Counsel: Nina F. Locker John P. Stigi III Kent W. Easter Krisana M. Hodges WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300

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CERTIFICATE OF SERVICE I hereby certify that on November 2, 2005 I electronically filed the foregoing DEFENDANT QUOVADX, INC.'S REQUEST FOR ENTRY OF THE [PROPOSED] CONSOLIDATED SCHEDULING ORDER with the Clerk of Court using CM/ECF System, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

/s/ Charlene Huffman Charlene Huffman

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