Free Motion for Extension of Time - District Court of Arizona - Arizona

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FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

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v.
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AVNET, INC., a foreign corporation, Roy Vallee and Jane Doe Vallee, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

AVNET' MOTION FOR EXTENSION S OF EXPERT DISCLOSURES AND REQUEST FOR EXPEDITED BRIEFING AND/OR RULING (Assigned to The Hon. Susan R. Bolton)

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

The Avnet Defendants ("Avnet") respectfully request that the Court extend the date for disclosure of Avnet' experts because plaintiff only recently disclosed 900 pages of s business records that should have been disclosed no later than January 2005. Despite the requirements of Fed. R. Civ. P. 26(a)(1), discovery requests specifically targeting the information at issue, and repeated written requests from Avnet, plaintiff did not produce the business records at issue until July 22 ­ a mere 45 days before the deadline for Avnet' expert disclosures. Plaintiff' delay in producing the long-overdue documents s s has left Avnet with insufficient time to review the documents, retain the appropriate

Case 2:04-cv-00621-SRB

Document 83

Filed 09/02/2005

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

expert, and receive a report from its expert. 1 Accordingly, Avnet respectfully requests that the Court extend Avnet' expert disclosure deadline by at least 30 days. s LEGAL ANALYSIS I. Plaintiff' Repeated Refusal to Produce Business Records s Plaintiff filed this lawsuit on March 29, 2004 but did not produce any of his business records supporting his claim for damages until July 22 ­ nearly 14 months later. Despite Fed. R. Civ. P. 26(a)(1)' requirement that plaintiff support his damages s calculations with "the documents or evidentiary material", plaintiff refused to provide the business records supporting his damages calculations. Avnet' sent its First Request for s Production in November 2004, but plaintiff failed to provide the requested information. Avnet sent numerous letters requesting the business records at issue, but plaintiff responded that he would not produce the records until Avnet provided discovery responses deemed satisfactory to plaintiff. See April 28, 2005 Letter from J. Meschkow to C. Houston at 2, attached as Exh. 1; see also April 4, 2005 Letter from J. Meschkow to C. Houston at 2, attached as Exh. 2; see also March 11, 2005 Letter from C. Houston to J. Meschkow, attached as Exh. 3; see also January 20, 2005 Letter from J. Meschkow to J. Green, attached as Exh. 4. When it became apparent that plaintiff would not be producing the records Avnet was clearly entitled to, Avnet sought relief from the Court by filing a Motion for Status Conference on July 20, 2005. Although the Court denied Avnet' Motion, the Motion had s the desired effect, as plaintiff produced the requested documents on July 22 - two days after Avnet filed its Motion and a mere 45 days before Avnet' expert disclosure s deadline. These documents consisted of nearly 900 pages of business records that are relevant to plaintiff' claim for damages and that should have been produced many s
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Avnet anticipates that it will present expert testimony on only one topic ­ the market value of the photographs at issue in the instant lawsuit. Avnet believes that plaintiff' designation of two separate experts who both plan to testify s regarding copyright infringement, copyright damages, and the alleged "willfulness" of Avnet' conduct is improper. s

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

months ago pursuant to Fed. R. Civ. P. 26(a)(1) as well as in response to Avnet's discovery requests. On August 26, 2005, undersigned counsel sent a letter to plaintiff' counsel s requesting that plaintiff agree to a stipulation extending Avnet's expert disclosure deadline in light of plaintiff' late production of his business records, but plaintiff' s s counsel declined. See August 26, 2005 Letter from C. Houston to J. Meschkow, attached as Exh. 5; see also August 29, 2005 Letter from J. Meschkow to C. Houston, attached as Exh. 6. Accordingly, Avnet has no choice but to seek relief from the Court. II. Plaintiff' Late Production Has Prejudiced Avnet s Plaintiff' late production of business records that should have been produced long s ago has resulted in prejudice to Avnet. By waiting until 45 days before Avnet' expert s disclosure deadline and then sending Avnet nearly 900 pages worth of business records, plaintiff has effectively thwarted Avnet' right to conduct a meaningful examination of s the records, retain the appropriate expert, and provide them to its expert in time for the expert to prepare an appropriate expert report. Avnet respectfully urges this Court not to condone such tactics and requests that the Court extend Avnet' expert disclosure deadline s by at least 30 days.

RESPECTFULLY SUBMITTED this ______ day of September, 2005. FENNEMORE CRAIG By /s/_____________________________ Jordan Green Charles Houston Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Certificate of Service I hereby certify that on August 3rd, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 /s/_____________________________ Michelle Helterbran

1706841/12444.027

Case 2:04-cv-00621-SRB

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