Pinnacle Armor, Inc. vs. USA

Filing 89

STIPULATION and ORDER re: Discovery, signed by Magistrate Judge Stanley A Boone on 4/19/2013. (Kusamura, W)

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1 ERIC H. SAIKI (SBN 155762) 2 4 RADCLIFF & SAIKI LLP 21515 Hawthorne Blvd. Suite 650 Torrance, CA 90503 Telephone: (310) 698-0600 Facsimile: (310) 698-0601 5 Attorneys for Plaintiff, PINNACLE ARMOR, INC. 3 esaiki@radcliffsaiki.com 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PINNACLE ARMOR, INC, 12 13 14 Plaintiff, Case No.: 1:07-cv-01655-LJO-SAB STIPULATION RE DISCOVERY AND ORDER v. UNITED STATES OF AMERICA, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 STIPULATION RE DISCOVERY AND ORDER 20130419.0948 1 2 3 IT IS HEREBY STIPULATED by and between Plaintiff on the one hand, and Defendant, on the other hand, by and through their counsel of record, that: 1. On February 12, 2013, the Court issued its Order re Plaintiff’s Motion to 4 Supplement the Administrative Record (ECF 81). The Order allowed Plaintiff to file a very 5 narrow motion for discovery to uncover whether the National Institute of Justice (“NIJ”) 6 considered additional data from the Army or DOD, and set the deadline for filing said motion for 7 March 1, 2013 8 9 10 11 2. Accordingly, counsel for Plaintiff and Defendant met and conferred over a stipulation as to the nature of any discovery and/or to supplement the Revised Administrative Record (“RAR”) with Army or DOD data. 3. On February 28, 2013, the Court issued an Order, based on the stipulation of the 12 parties, extending the deadlines for the filing of the discovery motion and response, to March 29, 13 2013, and April 5, 2013, respectively. 14 4. Due to the continuing discussions of the parties, additional time was required to 15 attempt to resolve the remaining discovery issues in order to obviate the need for a discovery 16 motion. Accordingly, on April 4, 2013, the Court issued a further Order based on the stipulation 17 of the parties, extending the deadlines for the filing of the discovery motion and response to 18 April 19, 2013, with the response deadline continued accordingly to April 26, 2013. 19 20 21 22 5. The parties were subsequently able to stipulate to some, but not all of, the information sought by Plaintiff. 6. With respect to the information sought, Plaintiff requested that the NIJ provide documents and/or information regarding: 23 a. Any and all documents sent by the Army and/or the Department of 24 Defense (“DoD”) to the NIJ or its affiliated offices regarding Pinnacle 25 Armor, Inc.’s products during the years 2006 and 2007; 26 b. Any and all documents sent by the NIJ or its affiliated offices to the Army 27 and/or DoD regarding Pinnacle Armor Inc.’s products during the years 28 2006 and 2007; 2 STIPULATION RE DISCOVERY AND ORDER 20130419.0948 1 c. Any and all documents received by the NIJ or its affiliated offices from 2 any source which it is aware was also provided to or possessed by the 3 Army and/or DoD regarding Pinnacle Armor Inc.’s products during the 4 years 2006 and 2007; 5 d. Any and all transmittal letters, cover sheets, or the like which 6 accompanied any of the material in items [a through c] above; 7 7. In response to these four requests, the NIJ responded that the only documents it 8 had that were responsive to these requests were already in the Revised Administrative Record. 9 Accordingly, the parties stipulate and agree that formal written discovery would not result in the 10 production of any additional documents that were not already in the Revised Administrative 11 Record. 12 8. Plaintiff also requested information on the nature and substance of any 13 conversations that took place between the NIJ, on the one hand, and the Army/DOD, on the 14 other. The questions were as follows: 15 a. Please identify any and all persons from or affiliated with the Army and/or 16 DoD who had conversations with NIJ personnel or affiliated offices 17 regarding Pinnacle Armor Inc.’s products during the years 2006 and 2007; 18 b. Please identify any and all persons from or affiliated with the NIJ or its 19 affiliated offices who had any conversation with the Army and/or DoD 20 regarding Pinnacle Armor Inc.’s products during the years 2006 and 2007; 21 c. Please state the substance of any and all conversations identified in items 22 23 [a and b] above. 9. The NIJ responded that conversations between it and the Army/DOD did indeed 24 take place regarding Pinnacle Armor, Inc.’s products during the years 2006 and 2007, but that it 25 would not state the substance of those conversations. The NIJ further responded that the 26 identities of the persons who may have participated in such conversations could be gleaned from 27 the Revised Administrative Record, but declined to provide plaintiff with a list of individuals 28 who actually had engaged in such conversations. 3 STIPULATION RE DISCOVERY AND ORDER 20130419.0948 1 10. Accordingly the parties have been unable to reach a complete agreement as to the 2 documents or information that would supplement the Revised Administrative Record. Plaintiff 3 therefore will file a discovery motion on April 19, 2013, which the NIJ will oppose on April 26, 4 2013, as authorized by the February 12, 2013 Order. 5 11. The parties have agreed, however, that once the ruling on the discovery motion, 6 and any discovery as may be allowed is completed, that the case may be resolved on the parties’ 7 cross-motions for summary judgment in accordance with a briefing schedule generally as 8 follows: 9 a. The NIJ will file its Motion for Summary Judgment; 10 b. Plaintiff will file its Opposition and Cross-Motion for Summary 11 Judgment; 12 c. The NIJ will file its Opposition and Reply in Support of its Motion for 13 Summary Judgment; 14 d. Plaintiff will file its Reply in Support of its Cross-Motion for Summary 15 Judgment. 16 12. The parties agree that the final briefing schedule should take into account counsel 17 for the parties’ existing work commitments and trial schedules and they will confer on proposing 18 a briefing schedule to the court. 19 /// 20 /// 21 /// 22 23 24 25 26 27 28 4 STIPULATION RE DISCOVERY AND ORDER 20130419.0948 1 13. In light of the parties’ decision to file cross-motions for summary judgment, the 2 NIJ agrees to withdraw its Third Motion to Dismiss or in the Alternative Motion for Summary 3 Judgment, ECF No. 64.1 4 5 Dated: April 19, 2013 RADCLIFF & SAIKI, LLP 6 8 By: /s/ Eric H. Saiki Eric H. Saiki Attorneys for Plaintiff 9 PINNACLE ARMOR, INC. 7 10 Dated: April 19, 2013 12 By: /s/ Tamra T. Moore Tamra T. Moore Attorneys for Defendant 13 UNITED STATES OF AMERICA 11 14 15 16 17 IT IS SO ORDERED. 18 19 Dated: April 19, 2013 _ _ UNITED STATES MAGISTRATE JUDGE 20 DEAC_Sig nature-END: 21 i1eed4 22 23 24 25 1 26 27 28 Although this Court has ruled that plaintiff’s suit is not moot, see, e.g., Oct. 26, 2012 Order, ECF No. 69, the NIJ respectfully disagrees with the Court’s conclusion and contends that this suit should be dismissed for lack of jurisdiction. The NIJ reserves its right to raise this argument should any appeal follow. Notwithstanding the NIJ’s contention that jurisdiction does not exist in this case, the agency will move for summary judgment in accordance with this Court’s October 26, 2012 Order. 5 STIPULATION RE DISCOVERY AND ORDER 20130419.0948

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