Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF

Document 54

Filed 12/05/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AES PUERTO RICO, L.P., Plaintiff, v. ALSTOM POWER INC., Defendant. * * * * * * * * C.A. No. 04-1282-JJF

* * * * * * * * DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR CLARIFICATION OF SCHEDULING ORDER

Richard R. Wier, Jr. (#716) Daniel W. Scialpi (#4146) RICHARD R. WIER, JR., P.A. 1220 Market St., Suite 600 Wilmington, DE 19801 (302) 888-3222 Of Counsel: James E. Edwards, Esquire Anthony F. Vittoria, Esquire Michael A. Schollaert, Esquire OBER, KALER, GRIMES & SHRIVER A Professional Corporation 120 East Baltimore Street Baltimore, Maryland 21202-1643 Phone: (410) 685-1120 Fax: (410) 547-0699 Counsel for Defendant ALSTOM Power Inc. Date: December 5, 2005

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Defendant, ALSTOM Power Inc. ("ALSTOM"), by and through undersigned counsel, hereby submits this Response to Plaintiff AES Puerto Rico, L.P.'s Motion for Clarification of the Scheduling Order. I. Expert Depositions

ALSTOM concurs with AES that, because of the technical nature of this case, expert depositions should not count against the 7 witness and 3 Rule 30(b)(6) depositions provided for by the Court's October 7, 2005 Scheduling Order (the "Scheduling Order"). II. Timing of Expert Disclosures

As correctly pointed out by AES, the Order does not provide deadlines for the disclosure of each party's expert reports. The Order, does, however, provide a trial date of May 22, 2006. In the absence of an established deadline for expert disclosures, the Federal Rules of Civil Procedure control. Rule 26(a)(2)(C) of the Federal Rules provides the following, in relevant part: In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. As the party with the burden of proof on all issues in this matter, AES's expert disclosures are due 90 days before trial ­ that is, on or before February 21, 2006.1 ALSTOM does not have the burden of proof as to any issue in this case. Consequently, its expert testimony would only be proffered to rebut or counteract the evidence presented by AES. See United States v. Chrzanowski, 502 F.2d 573, 576 (3rd Cir. 1974) ("the function and

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It is unclear how AES arrived at the February 27, 2006 date contained in its Motion, as that date is only 84 days prior to trial.

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purpose of rebuttal testimony is to explain, repel, counteract or disprove the evidence of the adverse party"). Accordingly, under Rule 26(a)(2)(C), ALSTOM's expert disclosures should be due 30 days after AES's expert disclosures ­ that is, on or before March 23, 2006. The staggering of expert disclosures also comports with other Scheduling Orders issued by this Court. (See, e.g., Tab 1, Scheduling Order in Case No. 03-0544 (JFF), at ¶ 4(f).) III. Conclusion

Like AES, ALSTOM seeks clarification from the Court as to the Scheduling Order. ALSTOM concurs with AES's request that expert depositions not count towards the 10 other depositions provided by the Court. Unlike AES, however, ALSTOM believes that the Federal Rules provide that AES's expert disclosures are due on or before February 21, 2006, while ALSTOM's expert disclosures are due on or before March 23, 2006. Accordingly, ALSTOM respectfully requests the Court to clarify the Scheduling Order in those regards. ALSTOM POWER INC.

/s/ Daniel W. Sciapli Richard R. Wier, Jr. (#716) Daniel W. Scialpi (#4146) RICHARD R. WIER, JR., P.A. 1220 Market St., Suite 600 Wilmington, DE 19801 (302) 888-3222 [email protected] James E. Edwards, Esquire Anthony F. Vittoria, Esquire Michael A. Schollaert, Esquire OBER, KALER, GRIMES & SHRIVER A Professional Corporation 120 East Baltimore Street Baltimore, Maryland 21202-1643 Phone: (410) 685-1120 Fax: (410) 547-0699

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Case 1:04-cv-01282-JJF

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this 5th day of December 2005, copies of the foregoing Defendant's Response to Plaintiff's Motion for Clarification of Scheduling Order and accompanying Proposed Order was filed with the Court using CM/ECF, which will send copies of those documents to: John S. Spadaro, Murphy Spadaro & Landon, 1011 Centre Road, Suite 210, Wilmington, Delaware 19805. In addition, courtesy copies were served, via electronic mail, upon Daniel D. Williams, Esquire, Williams & Connolly LLP, 725 Twelfth Street, N.W., Washington, D.C. 20005

/s/ Daniel W. Scialpi Daniel W. Scialpi

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