United States Response to Defendant's Motion to Compel Deposition of Government Expert
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION ________________________________________________________________ [filed 4/3/95] 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. FACTUAL BACKGROUND 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 date.
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. 1 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. ARGUMENT 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. Respectfully submitted, _/s/________________________________ Craig W. Conrath Attorney U.S. Department of Justice 1401 H Street, N.W. Washington, DC 20530 (202) 307-5779 Local Contact Number: (501) 521-5083 Dated: April 3, 1995
1 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.