Free Motion in Limine - District Court of Federal Claims - federal

Case 1:01-cv-00459-GWM

Document 60

Filed 08/23/2005

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) INTERNATIONAL DATA PRODUCTS ) CORP., ) ) Plaintiff, ) ) v. ) No. 01-459C ) (Judge George W. Miller) THE UNITED STATES, ) ) Defendant. ) ____________________________________) DEFENDANT'S MOTION IN LIMINE Pursuant to Appendix A, ¶¶ 14(a)(3) and 14(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this motion in limine. This Court possesses the authority to issue pretrial rulings concerning the admissibility at trial of proposed testimony and documentary evidence. Baskett v. United States, 2 Cl. Ct. 356, 359 (1983); White Mountain Apache Tribe of Arizona v. United States, 10 Cl. Ct. 115, 116 (1986). Defendant moves to exclude the second entry on plaintiff's list of trial exhibits: "Documentation of Employee hours worked - DCAA document numbers 0014 through 0018." The "documentation" are affidavits signed by four of the eight IDP employees ­ Dave Costello, Paul Seyfrit, Vicki Hiers, and Brian Anderson ­ who allegedly performed warranty services for the Desktop V contract. These affidavits are hearsay, because IDP seeks to offer them in evidence as proof of the number of hours that each employee worked on the Desktop V contract during the period August 1999 through April 2000. Fed. R. Ev. 801(c). The affidavits should be excluded from evidence because IDP cannot demonstrate that any of the hearsay exceptions provided in Fed. R. Ev. 803 and 804 make the affidavits admissible. Defendant also moves to preclude IDP from offering any expert testimony by Darryl Oyer, who is identified in IDP's list of trial witnesses as an "expert in accounting." RCFC

Case 1:01-cv-00459-GWM

Document 60

Filed 08/23/2005

Page 2 of 3

26(a)(2)(B) requires that a party that intends to present expert testimony at trial must serve a written report prepared by the expert witness that "contain[s] a complete statement of all opinions to be expressed and the basis and reasons therefor." IDP has not served any report that discloses Mr. Oyer's opinions about "the correct accounting treatment for the employee and third party payments," the subjects that IDP states in its witness list that he may testify about, if necessary. Thus, the Court should bar Mr. Oyer from offering any expert opinions about these or any other subjects. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

OF COUNSEL: E. MICHAEL CHIAPARAS Acting Director Contract Disputes Resolution Center Defense Contract Management Agency 10500 Battleview Parkway, Suite 105 Manassas, VA 20109 JOHN T. LAURO Trial Attorney Commercial Litigation Division Air Force Legal Services Agency 1501 Wilson Boulevard Arlington, VA 22209

s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director

s/ John H. Williamson JOHN H. WILLIAMSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 E-mail: [email protected] Attorneys for Defendant

August 23, 2005

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Case 1:01-cv-00459-GWM

Document 60

Filed 08/23/2005

Page 3 of 3

CERTIFICATE OF SERVICE I certify under penalty of perjury that on this 23rd day of August, 2005, a copy of the foregoing "DEFENDANT'S MOTION IN LIMINE" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s John H. Williamson