Berlin, et al v. PE Corp, et al

MOTION for Extension of Time until 10/20/04 to complete discovery

D. Conn.September 22, 2004

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT In re PE Corporation Securities Litigation : : : : : Case No. 3:00 CV 705 (CFD) SEPTEMBER 21, 2004 JOINT MOTION FOR EXTENSION OF DISCOVERY SCHEDULE Plaintiffs David Berlin and Vinh Vuong (“Plaintiffs”) and defendants PE Corporation n/k/a Applera Corporation, Tony L. White, Dennis L. Winger and Vikram Jog (“Defendants”), through their undersigned counsel, hereby move pursuant to Federal Rule of Civil Procedure 6(b) for an extension of the discovery and briefing schedules. In support of this motion, the parties represent: 1. On May 21, 2003, the parties submitted their Report of Planning Meeting pursuant to Rule 26(f) (the “Report”). In the Report, the parties agreed to a discovery period of six months from the date of the Report. The Report was approved and ordered by the Court on June 12, 2003. 2. On July 15, 2003, Plaintiffs served their First Request for Production of Documents. During this period of time, Plaintiffs also served subpoenas on several non-party witnesses. On August 5, 2003, Defendants moved for a protective order concerning Plaintiffs’ discovery requests to Defendants and certain subpoenas served on non-parties (the “Motion for Protective Order”). Defendants’ Motion for Protective Order was denied by Magistrate Judge Thomas P. Smith on November 3, 2003. 3. Because Defendants did not produce certain disputed documents during the pendency of the Motion for Protective Order, the parties filed a motion to extend the discovery Case 3:00-cv-00705-CFD Document 109 Filed 09/22/2004 Page 1 of 4 schedule on October 1, 2003, which was endorsed by the Court on October 9, 2003. Specifically, the motion requested, among other things, that fact discovery be extended until 4 months following the substantial completion of document production by Defendants after resolution of the Motion for Protective Order. 4. By letter dated March 12, 2004, Defendants represented that they had substantially completed their document production. Accordingly, the new fact discovery cut-off date became July 12, 2004. 5. On June 15, 2004, Plaintiffs requested an order extending the fact discovery cut- off date to, and including, September 30, 2004. The extension was requested since Plaintiffs were awaiting documents from the National Institutes of Health and the Department of Energy, which were requested on August 7, 2003 through the Freedom of Information Act. The Court granted Plaintiffs’ request on June 26, 2004. 6. Due to scheduling conflicts, the parties have been unable to schedule three critical witnesses prior to the September 30, 2004 cut off, including Tony White (the current Chief Executive Officer of Applera Corp.), Dennis Winger (the current Chief Financial Officer of Applera Corp.), and Craig Venter (the former President of the Celera Genomics Group who has been out of the country for much of the past six months). Messrs. White and Winger are named as defendants in the action. The parties have been able to schedule and confirm deposition dates for each of these three witnesses in October 2004. Accordingly, the parties respectfully request an extension of the discovery cut-off date through and including October 20, 2004, so that Plaintiffs may have the opportunity to depose these key fact witnesses. Case 3:00-cv-00705-CFD Document 109 Filed 09/22/2004 Page 2 of 4 RELIEF REQUESTED Based on the foregoing, the parties respectfully request that the Court issue an Order extending the fact discovery cut-off through, and including, October 20, 2004. Pursuant to the schedule agreed to by the parties set forth in paragraph E.7 of their Rule 26(f) Report, (i) plaintiffs shall designate all trial experts and serve their reports pursuant to Fed. R. Civ. P. 26(a)(2) by December 6, 2004, (ii) defendants shall designate all trial experts and serve their reports pursuant to Fed. R. Civ. P. 26(a)(2) by January 20, 2005, (iii) plaintiffs shall designate all rebuttal experts, if any, and serve their reports pursuant to Fed. R. Civ. P. 26(a)(2) by March 7, 2005, and (iv) depositions of any such trial experts will commence 30 days after designation and service of an expert report and will be concluded within 60 days of such designation. Case 3:00-cv-00705-CFD Document 109 Filed 09/22/2004 Page 3 of 4 PLAINTIFFS DAVID BERLIN AND VINH VUONG, DEFENDANTS PE CORPORATION, TONY L. WHITE, DENNIS L. WINGER and VIKRAM JOG By: By: David Slossberg (CT13116) Brian C. Fournier (CT16272) Hurwitz, Sagarin & Slossberg, LLC 147 North Broad Street P.O. Box 112 Milford, CT 06460 (203) 877-8000 Stanley A. Twardy (CT05096) Thomas D. Goldberg (CT04386) Terence J. Gallagher (CT22415) Day, Berry & Howard LLP One Canterbury Green Stamford, CT 06901 (203) 977-7300 -and- -and- Sanford P. Dumain (CT08138) Lee A. Weiss (pro hac vice) Carlos F. Ramirez (pro hac vice) Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza New York, NY 10119 (212) 594-5300 Michael J. Chepiga (CT01183) William M. Regan (pro hac vice) Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 (212) 455-2000 Case 3:00-cv-00705-CFD Document 109 Filed 09/22/2004 Page 4 of 4