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

Case 1:05-cv-00381-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ARKANSAS GAME & FISH COMMISSION v. NO. 05-381L JUDGE CHARLES F. LETTOW

PLAINTIFF

THE UNITED STATES

DEFENDANT

RESPONSE TO DEFENDANT'S MOTION FOR ENLARGEMENT OF FACT DISCOVERY Comes now the Arkansas Game & Fish Commission ("AGFC" or "the Commission"), through its undersigned attorneys, and submits this Response to Defendant's Motion for Enlargement of Fact Discovery. In the parties' Joint Preliminary Status Report filed on July 8, 2005 and, again, during the telephone status conference with this Court on September 20, 2005, counsel for AGFC and Defendant represented that factual discovery would be completed no later than April 30, 2006. The Court subsequently issued an Order dated September 21, 2005 directing that "factual discovery shall be completed by May 1, 2006, and the parties shall provide a joint status report on or before May 31, 2006, proposing a plan and schedule for further proceedings in the case." On April 24, 2006, Plaintiff and Defendant filed a Joint Motion for Extension of Fact Discovery representing to the Court that the parties desired to have the discovery deadline extended until September 1, 2006. The parties represented that additional discovery was needed and a joint site visit was being planned for before September 1. In an Order filed on April 26, 2006, the Court granted the parties' motion and extended the discovery deadline until September 1, 2006 and required that a joint status report be filed on or before September 29, 2006.

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Thereafter, on July 31, 2006, the parties once again requested an extension of the deadline for fact discovery ­ this time for a one-month period ending October 2, 2006. The reasons advanced for this extension was: (1) because of scheduling constraints, Defendant had difficulty including depositions of fact witnesses following the joint site visit on July 11, 2006; (2) counsel for Defendant was unavailable during August 2006 due to her wedding and other travel commitments; and (3) the parties were considering entering into settlement discussions and the requested additional time would be beneficial in facilitating that effort. By Order filed on August 2, 2006, the Court granted this request and extended the fact discovery deadline until October 2, 2006 and required the joint status report to be filed on or before October 20, 2006. Since this lawsuit was filed in March 2005, both sides have exchanged several thousand pages of documents pursuant to multiple discovery requests, and approximately 18 fact witnesses have been deposed. Defendant, including its counsel and experts, conducted independent visits to the site of the alleged timber taking on dates in October 2005 and February 2006, and was accompanied by AGFC on a third "joint site visit" in July 2006. Additionally, a settlement conference, which had been requested by AGFC, was held on September 12, 2006. On September 27, 2006, Defendant filed a Motion for Enlargement of Fact Discovery requesting 32 additional days to complete fact discovery. AGFC has expressed to Defendant that AGFC is willing to accommodate the five witness depositions that were recently noticed by Defendant shortly before the October 2, 2006 discovery deadline. However, for the reasons set forth below, AGFC objects vigorously to there being any additional depositions or fact discovery conducted by Defendant. Each numbered item below corresponds to the numbered paragraphs in Defendant's Motion. AGFC believes it has been diligent in efforts to facilitate timely completion of factual discovery with Defendant and that the parties have had more than adequate

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time during the past eighteen months, with the benefit of the two extensions already granted by the Court, to enable both sides to complete all such discovery. 1. Depositions of Brad Carner, Scott Connelly, Donny Harris, and Myron Means:

During the week of September 11, 2006, Defendant's counsel stated that, based upon information learned during depositions Defendant took earlier that week, she desired to take additional depositions of other unspecified Arkansas Game and Fish employees. On the afternoon of September 18, 2006, Defendant's counsel notified AGFC that she wished to take the depositions of seven additional witnesses. Defendant then took the depositions of three of the seven AGFC employees on September 25-26. Several of the other identified AGFC employees were unavailable to be deposed upon the very short notice requested. AGFC has expressed to Defendant that AGFC is willing to accommodate the depositions of the other four employees on a mutually agreeable date after October 2, 2006. Accordingly, AGFC is not objecting to Defendant taking the depositions of these employees (Brad Carner, Scott Connelly, Donny Harris, and Myron Means) on a date or dates mutually agreeable with Defendant's and Plaintiff's counsel. 2. Deposition of Hugh Durham: On September 26, 2006, Defendant served a

subpoena duces tecum upon the former Director of the AGFC, Hugh Durham for an October 2, 2006 deposition in Crossett, Arkansas. The October 2nd date had not been discussed previously between the parties' counsel or agreed to by AGFC. Additionally, after being served on September 26th, Mr. Durham indicated that he could not be available for his deposition on October 2nd at the requested location without extreme hardship. However, because Mr. Durham's subpoena was served during the last week of fact discovery, AGFC is willing to

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accommodate a mutually agreeable date and time for Mr. Durham's deposition after the October 2, 2006, discovery deadline. 3. Unlimited Fact Discovery: Both parties have worked cooperatively to

accommodate discovery requested by the opposing party. After the completion of the previously noticed and subpoenaed depositions, Defendant will have taken a total of 13 fact depositions. Defendant is now requesting a blanket extension because it "may wish to depose additional persons who have yet to be noticed, during the week of October 30, 2006 . . . ." Defendant's Motion ¶ 3. Several of the recent depositions conducted by Defendant in this case have taken as long as eight to ten hours (including various short breaks) to complete. Defendant is now planning to take five more depositions, one which will require six hours of round-trip travel by vehicle.1 Therefore, it is unlikely additional depositions could be accommodated during the week of October 30, 2006. It is also unreasonable for Defendant to request that additional, as of yet unnamed, AGFC employees be readily available for depositions on such short notice (for example, Defendant hears the name of an AGFC employee during a deposition on October 31 and then notices that employee for deposition one or two days later). Additionally, counsel for AGFC, already attending depositions of the other five witnesses, would not have an opportunity to meet with any newly noticed witnesses to prepare for their depositions. Finally, as previously stated, Defendant has had ample time to conduct fact discovery in this case, and much fact discovery has been conducted. This case has been pending for over one and one-half years. It is now time for the parties to submit the Joint Status Report in order to move into the expert discovery phase of the case.

This deposition is of Hugh Durham who lives three hours away. Counsel for the parties are still working to set a mutually agreeable date for this deposition.

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Therefore, AGFC requests that the Court deny Defendant's request for "unlimited fact discovery until November 2, 2006," and only allow those five depositions (for Brad Carner, Scott Connelly, Donny Harris, Myron Means, and Hugh Durham) that have already been noticed prior to the expiration of the October 2, 2006 discovery deadline. Respectfully submitted Date of Signing: October 5, 2006 By: /s/ Julie D. Greathouse PERKINS & TROTTER, PLLC P. O. Box 251618 Little Rock, AR 72225-1618 501-603-9000 Phone /501-603-0556 Fax Of Counsel G. Alan Perkins PERKINS & TROTTER, PLLC Post Office Box 251618 Little Rock, AR 72225-1618 Telephone: (501) 603-9000 Telefax: (501) 603-0556 James F. Goodhart ARKANSAS GAME & FISH COMMISSION #2 Natural Resources Drive Little Rock, AR 72205 Telephone: (501) 223-6327 Telefax: (501) 223-6463

ATTORNEYS FOR PLAINTIFF ARKANSAS GAME & FISH COMMISSION

CERTIFICATE OF SERVICE I certify that I have on this 5TH day of October 2006 served a copy of the foregoing document on the party hereto by electronic filing: HelenAnne Listerman Natural Resources Section Environment & Natural Resources Division United States Department of Justice P. O. Box 663 Washington, DC 200044-0663

/s/ Julie D. Greathouse

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