OSAGE TRIBE OF INDIANS v. USA

Filing 391

ORDER granting 384 Motion to Compel; granting 386 Motion for Extension of Time Joint Status Report due by 4/9/2009, Status Conference set for 4/14/2009 10:00 AM in Chambers (Telephonic) before Chief Judge Emily C. Hewitt.; denying as moot 389 Cross Motion Signed by Chief Judge Emily C. Hewitt. (el3)

O S A G E TRIBE OF INDIANS v. USA

D o c . 391

In the United States Court of Federal Claims
N o . 99-550 L (in to which has been consolidated No. 00-169 L) (E -F ile d : April 2, 2009) _________________________________________ T H E OSAGE TRIBE OF INDIANS O F OKLAHOMA, Plaintiff, ) ) ) )

) ) v. ) ) T H E UNITED STATES OF AMERICA, ) ) Defendant. ) ) _________________________________________ ) ORDER B e f o re the court is Defendant's Motion to Conduct Further Discovery on the Koch " D if f erin g Leases Data" (defendant's Discovery Motion or Disc. Mot.), filed March 25, 2 0 0 9 , Osage Nation's Opposition to Defendant's Motion to Conduct Further Discovery o n the Koch "Differing Leases Data," (plaintiff's Response or Pl.'s Resp.), filed March 2 7 , 2009, and Defendant's Reply in Support of Motion to Conduct Further Discovery on th e Koch "Differing Leases Data" (defendant's Reply or Def.'s Reply), filed March 31, 2 0 0 9 . Also before the court is Defendant's Opposed Motion to Amend Briefing Schedule f o r Tranche 1.5 and Agreed Request for Expedited Consideration (Motion to Amend or M o t. to Amend), filed March 29, 2009, Osage Nation's Opposition to Defendant's M o tio n to Strike the Briefing Schedule and Cross-Motion to Amend the Briefing S ch ed u le (plaintiff's Response to the Motion to Amend or Pl.'s Resp. to Mot. to Amend), f ile d March 31, 2009, and Defendant's Reply in Support of Motion to Amend Briefing S c h e d u le for Tranche 1.5 (defendant's Reply to Motion to Amend or Def.'s Reply to Mot. to Amend), filed April 1, 2009. D e f e n d a n t's Discovery Motion stems from a dispute over information provided to th e parties by Koch Industries, Inc. (Koch Data) and in the Vance Klager Declaration (K lage r Declaration) that plaintiff used in calculating damages in its motion for summary

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ju d g m e n t. Disc. Mot. 2. Specifically, the parties are in disagreement over the Differing L e a se s Data discussed in the telephonic status conference (TSC) on March 10, 2009 and s u b s e q u e n t Order (Dkt. No. 377). Defendant claims that "it has always been c o n te m p la te d that the parties would use a Joint Data Base for data to which Plaintiff[] w o u ld attempt to apply the [c]ourt's Tranche 1 Rulings," Mot. to Amend 2, and that d e f en d a n t has not had an opportunity to obtain enough discovery on the Differing Leases D a ta , id. at 3. Plaintiff claims that it provided defendant with the Koch Data "six weeks b e f o re the close of the regular discovery period," Pl.'s Resp. 8, and that "the United S ta te s misstates the scope of the Joint Data Base, mischaracterizing it as an exclusive s o u rc e of data," Pl.'s Resp. to Mot. to Amend 3. Defendant also claims that defendant h a s not satisfied Rule 56(f) of the Rules of the United States Court of Federal Claims (R C F C ). Pl.'s Resp. 8. It was contemplated that the parties would cooperate during the discovery phase of th is matter and plaintiff itself stated that it anticipated needing "very limited third party d i sc o v e r y." See Mot. to Amend 2. In the court's view the interest of justice will be best s e rv e d in this particular circumstance by granting defendant's request for additional d i sc o v e r y. See RCFC 56(f) (allowing the court to issue "any other just order" in the case w h e re a party, by affidavit, shows "it cannot present facts essential to justify its o p p o s itio n " ).1 Because of an apparent breakdown in cooperation between the parties2 w ith respect to the Koch Data and the Klager Declaration, the court will allow, at d e f en d a n t's expense, discovery of the Differing Leases Data. F o r the foregoing reasons the court GRANTS defendant's Discovery Motion, G R A N T S defendant's Motion to Amend, and DENIES AS MOOT plaintiff's crossm o tio n to amend. Briefing in plaintiff's motion for summary judgment is STAYED. The c o u rt orders the following:

Defendant notes that "there is not time [to file an affidavit] under the expedited briefing schedule ordered for this issue, and there appears to be no need to delay this process any further merely to evaluate form over substance." Defendant's Reply in Support of Motion to Conduct Further Discovery on the Koch "Differing Leases Data" (defendant's Reply or Def.'s Reply), filed March 31, 2009 at 9; see Rule 1 of the Rules of the United States Court of Federal Claims (noting that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding") (emphasis added). The court does not take a position on which party, if any, is at fault in this matter. However, the result of the breakdown in cooperation must be addressed by the court.
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In the joint status report ordered on March 20, 2009 and due to be filed on o r before April 9, 2009 the parties shall propose (1) a schedule for the d is c o v e ry of the Differing Leases Data and (2) a schedule for the continued b rie f in g of plaintiff's motion for summary judgment. If the parties cannot a g r e e to a joint status report, they may submit separate status reports. T h e parties shall discuss their progress in complying with this Order and the M a rc h 20, 2009 Order at a TSC to be held on April 14, 2009 at 10:00 a.m. E a s te rn Daylight Time (EDT). A Sprint operator will initiate the call. If Koch Industries, Inc. anticipates making a motion for costs in this matter, it shall file a memorandum of points and authorities with the court on or b e f o re May 15, 2009. The memorandum shall explain whether it will be s e e k in g costs pursuant to RCFC 45(c)(3) or under another provision of law. A copy of this Order shall be delivered to Koch Industries by email in care o f its counsel, James M. Armstrong, at [e-mail].

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IT IS SO ORDERED. s/ Emily C. Hewitt E M IL Y C. HEWITT C h ie f Judge

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