Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00955-GMS

Document 151

Filed 07/21/2008

Page 1 of 4

MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP
ATTORNEYS AT LAW
NOEL C. BURN HAM
ADMITTED IN NEW YORK, PENNSYLVANIA &
DELAWARE

1105 MARKET STREET, 15TH FLOOR WILMINGTON, DE 19801-1607

302-504-7890
nburnham~mmwr.com

DIRECT DIAL

302-504-7800

FAX 302-504-7820

VIA ECF FILING

July 21, 2008

The Honorable Gregory M. Sleet 1. Caleb Boggs Federal Building 844 N. King Street Room 4324, Lockbox 19 Wilmington, DE 19801

Re: Buckley v. 0 'Hanlon U.S.D.C., D. DeL No. 04-cv-0955 (GMS)
Dear Chief Judge Sleet:

Our firm represents defendant Michael O'Hanlon in the matter shown above. I am writing in response to plaintiffs counsel's letter to you dated July 18,2008, in which counsel for the plaintiff informed you of certain problems relating to the failure of defense counsel to receive
copies of

plaintiffs expert reports. While plaintiffs counsel's letter was technically accurate, it

does not provide a suffciently detailed explanation of

the problem that has occurred as a result

of defendants' failure to receive service copies ofplaintiffs expert reports.

by

accident. Plaintiff

Our firm discovered that plaintiff had, in fact, served expert reports in this action entirely the DVI, Inc. Liquidating Trust, which is Dennis Buckley is the Trustee of

bankrptcy proceedings in the U.S. Bankptcy Court for the District of fied his 15th Report with the Delaware Bankptcy Court. Our firm, which happens to monitor the DVI, Inc. bankptcy proceedings,
currently the subject of Delaware. On Friday, July 11,2008, plaintiff obtained a copy of

the plaintiffs 15th Report to the Bankptcy Court that same day. Upon

reviewing plaintiffs Report, we discovered that plaintiff

had represented to the Bankptcy

Court that he had served his expert reports in this action on June 2, 2008. Up until that time, we had no information that suggested that plaintiff ever intended to serve expert reports or, in fact,
had ever served such reports. We then contacted several other counsel for the defendants to

determine whether this problem was unique to our firm, and we learned that several other counsel for the defendants - including counsel for Mr. Miler, Mr. Roberts, Mr. Turek, and the New York counsel for Mr. Cohn - also had not received copies ofthe plaintiffs expert reports.
Our firm did not come into possession of copies of

plaintifs expert reports until the

afternoon of Friday, July 11 - 45 days after plaintiffs' expert reports were certifed as being served, 9 days after the deadline for defense expert reports had already expired, and only 10 days before summary judgment motions were due. Our firm obtained these copies during the process of investigating the representations made by the plaintiff in his 15th Report to the Bankptcy Court. It so happened that, during our communications with other defense counsel

. PHilADELPHIA, PA . CHERRY HILL, N,J

. WILMINGTON, DE . BERWYN, PA . WEST CHESTER, PA .

A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA

LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER

Case 1:04-cv-00955-GMS

Document 151

Filed 07/21/2008

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MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP

The Honorable Gregory M. Sleet July 21, 2008
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on July 11 relating to the expert reports service problem, New York counsel for defendant Cohn learned for the first time that a Pennsylvania-based attorney representing Mr. Cohn in a related plaintiffs expert reports, and counsel for Mr. Cohn was kind matter had received a copy of enough to send electronic copies to our firm via e-maiL. On Monday, July 14,2008, our firm contacted Dennis Arese, counsel for plaintiff, and made him aware of the situation. Mr.
Arese's letter to you of July 18 followed.

the fact that counsel for Mr. O'Hanlon did not receive any opportunity to review plaintiff s expert reports until after the deadline for providing responsive reports had already passed and the deadline for fiing summary judgment motions was imminent, Mr. O'Hanlon respectfully requests that the Court grant the pending this action that was filed Joint Stipulation and Order to extend the case management schedule of with the Court on July 11,2008. Mr. O'Hanlon respectfully submits that granting the pending these Joint Stipulation and Order wil resolve any prejudice that he has suffered as a result of service problems related to plaintiffs expert reports.
In light of the foregoing facts, and in light of

cc: Richard L. Scheff, Esq. (via e-mail / PDF)

Jeffrey S. Feldman, Esq. (via e-mail / PDF) Richard William Riley, Esq. (via e-mail / ECF) Steven T. Davis, Esq. (via e-mail / ECF) Kellie Marie MacCready, Esq. (via e-mail / ECF) Francis A. Monaco, Jr., Esq. (via e-mail / ECF) Martin James Weis, Esq. (via e-mail / ECF) David E. Brand, Esq. (via e-mail / ECF) Peter B. Ladig, Esq. (via e-mail / ECF) David A. Felice, Esq. (via e-mail / ECF) Wiliam J. Taylor, Esq. (via e-mail / PDF) John C. Barnoski, Esq. (via e-mail / PDF) Patricia M. Hamil, Esq. (via e-mail / PDF) Vincent T. Cieslik, Esq. (via e-mail / PDF)
Dennis J. Arese, Esq. (via e-mail / PDF)

Case 1:04-cv-00955-GMS

Document 151

Filed 07/21/2008

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MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP

The Honorable Gregory M. Sleet July 21, 2008
Page 3

Amy Francisco, Esq. (via e-mail / PDF) Maura Fay McIlvain, Esq. (via e-mail / PDF) Robert E. Kelly, Esq. (via e-mail / PDF) Kelly D. Eckel, Esq. (via e-mail / PDF)
Julian W. Friedman, Esq. (via e-mail / PDF) Elizabeth S. Weinstein, Esq. (via e-mail / PDF)

Case 1:04-cv-00955-GMS

Document 151

Filed 07/21/2008

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MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP

The Honorable Gregory M. Sleet July 21, 2008
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bcc: Michael O'Hanlon (via e-mail / PDF)

Eileen Binderman (via e-mail / PDF and interoffce mail)