United States v. Cherokee General Corporation

1 THE HONORABLE KYMBERLY EVANSON UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE || UNITED STATES OF AMERICA, for the NO. 2:22-cv-00299-KKE Use and Benefit of SCI || INFRASTRUCTURES, LLC; AND SCI STIPULATION AND ORDER INFRASTRUCTURES, LLC, a Washington EXTENDING CASE DEADLINES || limited liability company, Plaintiffs, || v. || CHEROKEE GENERAL CORPORATION, an Oregon corporation; and HARTFORD || FIRE INSURANCE COMPANY, a Connecticut corporation, 13 Defendants.

14 || CHEROKEE GENERAL CORPORATION, an Oregon corporation, Counterclaim and Third-Party Plaintiff, |] v. || SCIINFRASTRUCTURES, LLC, a Washington limited liability company; and || SWISS RE CORPORATE SOLUTIONS AMERICA INSURANCE || CORPORATION f/k/a NORTH AMERICAN SPECIALTY INSURANCE || COMPANY, Bond No. 2216796, 21 Counterclaim Defendants.

STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 1 STIPULATION 2 Plaintiff and Counterclaim Defendant SCI Infrastructures, LLC (“SCI”), Defendant || and Counterclaim and Third-Party Plaintiff Cherokee General Corporation (“Cherokee”), || Defendant Hartford Fire Insurance Company (“Hartford”), and Counterclaim Defendant Swiss || Re Corporate Solutions America Insurance Corporation f/k/a North American Specialty || Insurance Company (“Swiss Re”) (collectively referred to as the “Parties”) hereby submit this || Stipulated Motion to Extend Certain Deadlines in Dkt. #40.

8 I. INTRODUCTION 9 Pursuant to the Court’s September 14, 2023 Order Granting Stipulated Motion to || Extended Case Schedule (Dkt. #40), the following discovery-related deadlines were set by the 11. || Court: ||| JURY TRIAL SET FOR 09:00 am on 7/22/2024 ||| Disclosure of expert testimony under FRCP 26(a)(2) due 12/22/2023 ||| Disclosure of rebuttal expert testimony under FRCP 26(a)(2) 1/23/2024 due ||| All motions related to discovery must be filed by 1/23/2024 ||| Discovery completed by 2/22/2024 ||| All dispositive motions and motions challenging expert witness 3/25/2024 testimony must be filed by this date (see LCR 7(d)). Such ||| motions must be noted for consideration no later than the fourth Friday thereafter (see LCR 7(d ||| Settlement conference, if mediation has been requested by the 4/22/2024 parties per LCR 39.1 held no later than 21 Mediation per LCR 39.1 if requested by the parties, held no later 6/6/2024 than ||| All motions in limine must be filed by 6/17/2024 23 Proposed jury instructions and agreed LCR 16.1 Pretrial Order 7/1/2024 STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 ||| due, including exhibit list with completed authenticity, admissibility, and objections fields ||| Trial briefs, proposed voir dire questions, and depositions 7/8/2024 designations due ||| Pretrial conference scheduled at 10:00 am on 7/11/2024 4 At this time, the Parties believe there is good cause pursuant to FRCP 16(b)(4) as well || as LCR 16(b)(6) for an extension of discovery-related deadlines in the Court’s Order Granting || Stipulated Motion to Extended Case Schedule (Dkt. #40). The Parties are not asking the Court || to extend any deadlines that have already passed, nor are the Parties asking the trial date be || modified. Rather, the parties are asking that the Court grant the Parties’ joint request to extend || the following pending discovery-related deadlines: ||| Disclosure of expert testimony under FRCP 26(a)(2) | 12/22/2023 2/22/2024 due ||| Disclosure of rebuttal expert testimony under FRCP 1/23/2024 3/15/2024 26(a)(2) due |] | All motions related to discovery must be filed by 1/23/2024 3/21/2024 14 Discovery completed by 2/22/2024 4/1/2024 IS | Tan dispositive motions and motions challenging expert | 3/25/2024 4/7/2024 witness testimony must be filed by this date (see LCR 16 7(d)). Such motions must be noted for consideration no later than the fourth Friday thereafter (see LCR 7(d 18 The Parties believe the above-requested extensions are necessary given the high | volume of documents still being produced in this matter, coupled with efforts to obtain access |! to documents marked as confidential pursuant to a Protective Order in the matter of Cherokee |! General Corporation v. United States, Case No. 18-412C (Ct. Cl. 2018) (the “Underlying Lawsuit”). The Parties are jointly coordinating the production of documents requested from STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 || third parties via subpoenas served months ago, and some or all of the Parties intend to issue || additional subpoenas in the coming weeks.

3 In addition to the above, discovery in this litigation includes depositions of several || different individuals, some of whom are no longer employed by the parties and/or are currently || attempted to be located/reached by the parties, and other individuals currently/formerly || employed by the United States Army Corps of Engineers (“USACE”), which have posed || logistical challenges related to the scheduling of the same due to restrictions by the United || States.

9 The extensions requested by the Parties would allow the Parties additional time to |] resolve issues posed by the Protective Order in the Underlying Lawsuit, contact former and/or || unavailable employees for the purposes of deposing the same, obtain documents pursuant to || subpoenas previously issued, and provide the time necessary to obtain and review all relevant || facts and information necessary to resolve this dispute.

14 Il. RELIEF REQUESTED 15 The Parties ask that the Court to extend the currently pending discovery-related || deadlines set pursuant to Dkt. #40 as follows:

26(a)(2) due witness testimony must be filed by this date (see LCR ||| 7(d)). Such motions must be noted for consideration no later than the fourth Friday thereafter (see LCR 7(d STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES ZO1 FIFTH AVE. SUITE 4400 2 In the alternative, to the extent the Court declines to grant the above-requested || extensions, the Parties respectfully request the Court grant the following extensions of || deadlines regarding expert reports: 5 Event Current Date | Requested Date (In the Alternative ||| Disclosure of expert testimony under FRCP | 12/22/2023 2/6/2024 26(a)(2) due ||| Disclosure of rebuttal expert testimony under 1/23/2024 2/26/2024 FRCP 26(a)(2) due 9 TI. STATEMENT OF FACTS 10 To date, the Parties have worked diligently and effectively together on this matter, and || have already attempted to mediate this dispute. Both SCI and Cherokee have issued discovery || which has resulted in the continued production of documents, but leave the Parties with a || significant volume of documents to review. The parties are currently attempting to schedule || depositions, which has proven challenging given the logistical difficulties of scheduling || witnesses employed or formerly employed by the USACE, (e.g., requiring the Parties submit || Touhy Requests prior to deposing current/former employees of the USACE, the USACE’s || restrictions of witness availability, etc.), the upcoming holidays, and the fact that several || witnesses are former employees of the Parties. Finally, the Parties are currently engaged in || discussions with one another and counsel for the Department of Justice in order for SCI to || obtain documents produced by the United States in the Underlying Lawsuit, and are currently || engaged in efforts to compel the production of documents pursuant to subpoenas issued (or || subpoenas that will be issued) to third parties. The foregoing efforts have made a brief || continuance of the deadlines in the interest of the Parties and the Court, as the above-requested STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 || extensions will allow for a more efficient and effective resolution of the issues posed in this || dispute.

3 IV. ARGUMENT || A. Legal Standard 5 Pursuant to FRCP 16(b)(4), LCR 16(b)(6) the deadlines set forth in the Court’s Order || Granting Stipulated Motion to Extended Case Schedule (Dkt. #40) may be modified with good || cause. The “good cause” standard considers the diligence of the party (or Parties) seeking the g || amendment. Johnson vy. Mammoth Recreations, 975 F.2d 604, 609, (1992). The District Court g || can modify the schedule “if it cannot reasonably be met despite the diligence of the party || Seeking the extension." Johnson, 975 F.2d at 609.

11 || B- The Court Should Extend Discovery-Related Deadlines By 30 Days 12 The above-described facts support that there is good cause for an extension of the currently pending discovery-related deadlines in this matter. The extension will allow for the || Parties to continue to engage in necessary discovery and motion practice to prepare for trial or another mediation effort. The Parties have effectively used their time and worked diligently together by exchanging information and documents, and have worked towards resolution of the above-referenced challenges through regular and cooperative phone calls both with one another and with third parties in possession of information relevant to this dispute. At this point, an extension of the currently pending discovery-related deadlines 1s necessary to ensure the Parties will have an opportunity to conduct all necessary discovery before the deadlines for || discovery and dispositive motions expire. A failure to grant an extension of these currently || pending deadlines would force the Parties to proceed in the case on incomplete facts and on an unnecessarily expedited schedule.

STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES ZO1 FIFTH AVE. SUITE 4400 1 V. CONCLUSION 2 For the reasons stated above, the Parties jointly request the Court grant the above- || requested extensions of currently pending discovery-related deadlines.

4 DATED: December 1, 2023.

5 I certify that this memorandum contains 1,278 words, in compliance with the Local Civil Rules.

ASHBAUGH BEAL LLP By: _s/ Khalid Aziz 8 Robert S. Marconi, WSBA #16369 [email protected] 9 Khalid Aziz, WSBA #57409 [email protected] 10 Attorneys for SCI Infrastructure, LLC TOMLINSON BOMSZTYK RUSS By: _s/ David Vaz 13 Blair M. Russ, WSBA #40374 [email protected] 14 Aric S. Bomsztyk, WSBA #38020 [email protected] 15 David Vaz, WSBA #60480 [email protected] 16 Attorneys for Cherokee General Corporation and Hartford Insurance 17 Company WILLIAMS KASTNER GIBBS 20 By: _s/ Paul Friedrich Paul K. Friedrich, WSBA #43080 21 [email protected] Attorneys for Swiss Re Corporate Solutions 22 America Insurance Corporation f/k/a North American Specialty Insurance Company STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 ORDER The parties’ stipulated motion (Dkt. No. 50) is GRANTED: Event Date Disclosure of expert testimony under FRCP 26(a)(2) due 2/22/2024 Disclosure of rebuttal expert testimony under FRCP 26(a)(2) due 3/15/2024 All motions related to discovery must be filed by 3/21/2024 Discovery completed by 4/1/2024 All dispositive motions and motions challenging expert witness 4/7/2024 testimony must be filed by this date (see LCR 7(d)). Such motions must be noted for consideration no later than the fourth Friday 10 thereafter (see LCR 7(d 1] Any case deadline previously set (see Dkt. No. 40) and not modified by this order remains in effect.

14 DATED this Ist day of December, 2023.

15 A Gnber a Ke Emsam 16 Kymberly K. Evanson 7 United States District Judge |! Presented by: 19 ASHBAUGH BEAL LLP 20 By: _s/ Khalid Aziz Robert S. Marconi, WSBA #16369 21 [email protected] Khalid Aziz, WSBA #57409 22 [email protected] 33 Attorneys for SCI Infrastructure, LLC STIPULATION AND ORDER EXTENDING CASE Ashbaugh Beal DEADLINES 701 FIFTH AVE., SUITE 4400 1 TOMLINSON BOMSZTYK RUSS 2 By: _s/ David Vaz Blair M. Russ, WSBA #40374 3 [email protected] Aric S. Bomsztyk, WSBA #38020 4 [email protected] David Vaz, WSBA # 5 [email protected] Attorneys for Cherokee General 6 Corporation and Hartford Insurance Company 8 WILLIAMS KASTNER GIBBS By: _s/ Paul Friedrich 10 Paul K. Friedrich, WSBA #43080 [email protected] 11 Attorneys for Swiss Re Corporate Solutions America Insurance Corporation f/k/a North 12 American Specialty Insurance Company STIPULATION AND ORDER EXTENDING CASE Ashbau g h Beal DEADLINES 701 FIFTH AVE., SUITE 4400