UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA; PLAINTIFF
v. Civil No.: 95-5048
NAT, L.C. and D.R. PARTNERS
d/b/a DONREY MEDIA GROUP; DEFENDANTS.
COMMUNITY PUBLISHERS, INC.; and
SHEARIN INC., d/b/a SHEARIN & COMPANY REALTORS; PLAINTIFFS
v. Civil No.: 95-5026
DONREY CORP. d/b/a DONREY MEDIA GROUP,
NAT, L.C.; THOMSON NEWSPAPERS, INC., and
THE NORTHWEST ARKANSAS TIMES; DEFENDANTS.
UNITED STATES' RESPONSE TO DEFENDANTS'
MOTION TO COMPEL DEPOSITION OF GOVERNMENT EXPERT
This morning, April 3, 1995, the United States learned for
the first time that defendant NAT, L.C. had filed a motion with
the Court on Friday, March 31 to compel the deposition of the
government's economic expert, Dr. Ken Baseman, on April 6.
Counsel for the government were surprised to learn of the motion,
which we believe was entirely avoidable, since in conversations
and letters (described below) with counsel for NAT, L.C. last
Friday we clearly stated that we were willing to agree to any
reciprocal schedule for expert depositions, and asked counsel to
let us know what he wished to do. In short, we had a proposal on
the table, and we received no further response until we received
the defendants' motion today.
On March 29, 1995, Mr. Jones, counsel for NAT, L.C., left a
message for counsel for the United States indicating that he
wanted to depose the government's expert witness the following
week, on April 6 and 7. We sent Mr. Jones a letter the same day
saying that we had received his request, but proposing that "our
depositions of your experts and your deposition of our expert
take place in the traditional order, shortly before trial, as was
your arrangement with the private plaintiffs." Attachment 1.
Mr. Jones renewed his request to depose Dr. Baseman during the
week of April 3 in a letter faxed to the government on March 30
at approximately 6:30 p.m. Attachment 2.
Counsel for the government spoke to Mr. Jones by telephone
the next day, March 31. We pointed out that it had been our
experience that experts were almost always deposed at or near the
end of discovery in cases such as this, and we noted that this
was precisely the procedure defendants had followed with the
private plaintiffs in preparation for the original April 3 trial
In this conversation, Mr. Jones expressly confirmed one of
the government's major concerns about the procedure he was
proposing, stating that he expected to take not one, but two
separate depositions of the government's expert, one of them the
week of April 3 and the other near the end of discovery. We
suggested that two depositions of the experts simply did not make
sense given the short amount of time available to prepare for
trial, and that the same purposes could be achieved by having a
single deposition near the end of discovery. We confirmed this
conversation with a letter dated March 31, and concluded it, as
we had concluded the conversation with Mr. Jones, by saying that,
in spite of all our concerns, we were willing to agree to
reciprocal depositions of both experts on April 6 and 7. We
wrote: "we are prepared to accommodate any schedule you prefer,
provided that the same rules apply to both sides." Attachment 3.
Counsel for NAT, L.C., Mr. Jones, telephoned the
government again on March 31 after receiving the letter described
above. After Mr. Jones expressed his concern that the deposition
of the government's expert should be conducted first, we
immediately agreed, and said we would be willing to have Dr.
Baseman deposed on April 6 with our deposition of defendants'
expert, Dr. Overstreet, to follow on April 7. In fact, we stated
that we were agreeable to any reasonable schedule, so long as the
depositions were taken reciprocally, one after another. Mr.
Jones replied that he wanted to depose Dr. Baseman on the 6th,
but would not commit that his own expert could be available on
the 7th. We reiterated, as set forth in our confirming letter
after the conversation (Attachment 4), that "we would agree to
any reasonable date, the 6th or otherwise, on the sole condition
that 'fair is fair.'" We concluded by saying once again that "my
reciprocal offer remains open, and I will be waiting to hear from
you to schedule these depositions."
Unfortunately, the government heard nothing from counsel for
NAT, L.C. until this morning, when we learned second-hand (not
from any defendant) that NAT, L.C. had filed a motion to compel.
Mr. Jones then faxed a letter (to our Fayetteville office) this
morning at approximately 9:30 a.m. responding to our letters of
March 31; however, that letter does not mention the fact that
NAT, L.C. has filed the present motion. Attachment 5. The letter also
continues to refuse to commit to a specific date for our
reciprocal deposition of Dr. Overstreet, saying only that
defendants will "make every effort to have him available." The
United States' reply to that letter, expressing our surprise that
counsel would ignore our invitation to work out the schedule with
us, and instead take this matter to the Court, is included as
Attachment 6. We still have not heard a response on this issue.
See Attachment 7.
The United States continues to believe that the most
efficient and least wasteful procedure, given the compressed time
schedule in this case, is for the government and defendants to
each depose the other's expert near the end of other discovery,
at a time when their conclusions and opinions are likely to be
more final. Contrary to NAT, L.C.'s argument, the government has
not suggested that defendants wait until the very eve of trial to
depose Dr. Baseman. Instead, we proposed the week of April 17,
which will be after most remaining discovery has been completed,
but still two weeks before trial.
Nevertheless, as we have advised the defendants repeatedly,
the United States is willing to accommodate any reasonable
deposition schedule they prefer, so long as that schedule is
reciprocal and permits the government to depose defendants'
expert within the same general time frame as their deposition of
our expert. Unfortunately, defendants continue to refuse to
commit to such a schedule. Moreover, rather than taking
advantage of our stated willingness to agree to any reasonable
schedule, and our standing invitation to continue discussing the
schedule with us, which they could have pursued over the weekend,
NAT, L.C. instead chose to bring this motion on Friday. The
motion is unnecessary and was avoidable.
Accordingly, the United States requests that the Court deny
defendant's motion, and instead direct NAT, L.C. to agree with
the United States to relatively reciprocal deposition dates
either the week of April 17, 1995 or on April 6 and 7. For the
reasons set forth above, and because defendants chose to ignore
the government's open offer to continue discussing and resolve
this matter, NAT, L.C.'s request for costs should be denied.
Craig W. Conrath
U.S. Department of Justice
1401 H Street, N.W.
Washington, DC 20530
Local Contact Number:
Dated: April 3, 1995
Although counsel for the United States were working in our
Fayetteville offices throughout the weekend, and Mr. Jones has
previously placed telephone calls and sent faxes to those
offices, no one representing NAT, L.C. advised the government by
telephone about the motion, nor was a copy of it faxed to us.
Instead, the certificate of service indicates that the
government's copy was sent by Federal Express to Washington, DC.
We still have not received a copy of the motion from defendants.