Free Reply to Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ) __________________________________________) NORTHEAST SAVINGS, F.A.

Civil Action No. 92-550C Judge Williams

PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION TO DESIGNATE DEPOSITION TESTIMONY FOR TRIAL

Charles J. Cooper COOPER & KIRK, PLLC 555 Eleventh Street, N.W., Suite 750 Washington, D.C. 20004 (202) 220-9600 (202) 220-9601 (fax) Counsel of Record Of Counsel: Michael W. Kirk Vincent J. Colatriano David H. Thompson COOPER & KIRK, PLLC 555 Eleventh Street, N.W., Suite 750 Washington, D.C. 20004 (202) 220-9600 (202) 220-9601 (fax)

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................... (1) The Ryan, Ware, Riccobono, Burke, Moriarty, and Kovac Depositions Are Plainly Admissible Under FED. R. EVID. 801(d)(2)...................... (2) The Ryan, Riccobono, Burke, and Kovac Depositions Are Admissible Under RCFC 32(a)(2) .......................................................................... (3) All But One of the Designated Depositions Are Also Admissible Under RCFC 32(a)(3)(E)...................................................................... ii

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TABLE OF AUTHORITIES Case American Steel Works v. Hurley Construction Co., 46 F.R.D. 465 (D. Minn. 1969) ........................................................................................................ Banks v. Yokemick, 144 F. Supp. 2d 272 (S.D.N.Y. 2001)............................................ Daigle v. Maine Med. Ctr., 14 F.3d 684 (1st Cir. 1994) ............................................... Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91 (2004)............................. Griman v. Makousky, 76 F.3d 151 (7th Cir. 1996) ........................................................ Houser v. Snap-on Tools Corp., 202 F. Supp. 181 (D. Md. 1962) ................................ Kolb v. County of Suffolk, 109 F.R.D. 125 (E.D.N.Y. 1985)......................................... Long Island Savings Bank, F.S.B. v. United States, 63 Fed. Cl. 157 (2004) ................. Ryan-Walsh, Inc. v. United States, 39 Fed. Cl. 305 (1997) ........................................... Schlange-Schoeningen v. Parrish, 767 F.2d 788 (11th Cir. 1985) ................................ Ueland v. United States, 291 F.3d 993 (7th Cir. 2002) ................................................ United States v. International Bus. Machs. Corp., 90 F.R.D. 377 (S.D.N.Y. 1981) ....................................................................................................... United States v. Mathis, 559 F.2d 294 (5th Cir. 1977) ................................................. Young & Assoc. Pub. Relations, LLC v. Delta Air Lines, Inc., 216 F.R.D. 521 (D. Utah 2003) ............................................................................... Rules FED. R. CIV. P. 32........................................................................................................... FED. R. EVID. 801(d)(2) ................................................................................................. FED. R. EVID. 403 .......................................................................................................... RCFC 32 ........................................................................................................................ 3 2 6 3, 9 Page

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Other JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE ­ CIVIL § 32.24[1][C] (3d ed. 2006) .......................................................................................

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) NORTHEAST SAVINGS, F.A. ) ) Plaintiff, ) ) v. ) Civil Action No. 92-550C ) Judge Williams UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION TO DESIGNATE DEPOSITION TESTIMONY FOR TRIAL In its Motion to Designate Deposition Testimony for Trial ("Motion"), plaintiff Northeast Savings, F.A. ("Northeast") demonstrated that selected excerpts from ten depositions were plainly admissible under one or more of the following provisions: (1) FED. R. EVID. 801(d)(2)(D); (2) RCFC 32(a)(2); and (3) RCFC 32(a)(3)(E). At the heart of the Government's opposition to Northeast's motion is its attempt to reargue this Court's recent, and demonstrably correct, decisions in Long Island Savings Bank, F.S.B. v. United States, 63 Fed. Cl. 157 (2004), Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91 (2004), and Anchor Savings Bank v. United States, No. 95-38C (Order Granting-In-Part Plaintiff's Motion to Admit Deposition Testimony as Substantive Evidence) (Fed. Cl. May 17, 2005) ("Anchor Order") (attached at Tab 1 of the Motion). In well-reasoned opinions focusing on the plain language of the relevant rules, both Judge Lettow in Globe and Long Island and Judge Block in Anchor concluded that FED. R. EVID. 801(d)(2)(D) provides an independent basis for the substantive trial use of deposition testimony containing the admissions of Government agents regardless of the availability of those agents to testify in person. In these previous cases the Government repeatedly raised the same arguments

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that it does here; just as consistently this Court rejected those arguments as contrary to the plain text of the relevant rules and the great weight of authority. Despite its remarkable persistence, the Government offers no persuasive reason for this Court to depart from its consistent precedents; rather it merely recycles the same analysis and inapposite authority that this Court has already (and repeatedly) rejected. The Government likewise fails to rebut Northeast's showing that selected deposition testimony is admissible under RCFC 32(a)(2) and RCFC 32(a)(3)(E). (1) The Ryan, Ware, Riccobono, Burke, Moriarty, and Kovac Depositions Are Plainly Admissible Under FED. R. EVID. 801(d)(2). In its motion, Northeast demonstrated that the designated portions of the Ryan, Ware, Riccobono, Moriarty, Burke, and Kovac depositions constitute Government admissions under FED. R. EVID. 801(d)(2) that may be used at trial for substantive purposes. See Motion at 3-5, 67. Significantly, in its response, the Government does not contest ­ and it therefore concedes ­ that these depositions satisfy the requirements of Rule 801(d)(2).1 Rather, it argues that given "the common law preference for live testimony," these depositions are not admissible absent a showing that the deponents are unavailable to testify at trial. Gov't Opp. at 5; see also Gov't Opp. at 1-3. As this Court has repeatedly recognized, however, "the Government is mistaken that Rule 801(d) requires a showing of the unavailability of the declarant." Globe, 61 Fed. Cl. at 94. Statements qualifying as the admissions of a party opponent under Rule 801(d)(2) "are not hearsay," Long Island, 63 Fed. Cl. at 163; accord FED. R. EVID. 801(d)(2); accordingly, "[t]he common law's preference for live testimony has no bearing on the use of party admissions as evidence," Long Island, 63 Fed. Cl. at 163; see also Anchor Order at 4 ("[T]he Federal Rules of
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The Government does argue that four other depositions--those of Messrs. Gridley, Peckham, Beesley, and Elliot--fail to satisfy the requirements of Rule 801(d)(2). See Defendant's Opposition to Plaintiff's Motion to Designate Deposition Testimony for Trial ("Gov't Opp.") at 8. Northeast, however, has not moved for the admission of these four depositions under Rule 801(d)(2). 2

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Evidence do not require a party to demonstrate a declarant's `unavailability' when introducing out-of-court statements that are deemed to be non-hearsay under Rule 801(d)."). The Government also argues that "even if the named witnesses' deposition testimony fell within Fed. R. Evid. 801(d)(2)(D), to be admissible, it would still need to fall within RCFC 32(a)." Gov't Opp. at 5. It is, however, "well-established that plaintiff may admit deposition testimony at trial that satisfies the requirements of Rule 801(d) (and any other applicable evidentiary rule) and, if those requirements are satisfied, there are no other conditions to admissibility under Rule 32." Anchor Order at 6; see also Globe, 61 Fed. Cl. at 96 ("Fed R. Evid. 801(d)(2) provides an independent ground for admission of deposition testimony"). Indeed, Rule 32(a)(1) expressly provides that "[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence." RCFC 32(a)(1) (emphasis added). Although the Government insists that this provision "only permits deposition testimony to be introduced where at least one of the purposes of the deposition is to `contradict or impeach' the witness," Gov't Opp. at 5, this position is belied not only by the plainly disjunctive text of Rule 32, but also by the Advisory Committee Notes to FED. R. CIV. P. 32, which make clear that the identical language--"or for any purpose permitted by the Federal Rules of Evidence" --was added to the analogous provision of the Federal Rules of Civil Procedure for the specific purpose of allowing the introduction of testimony such as that at issue here: Subdivision (a)(1). Rule 801(d) of the Federal Rules of Evidence permits a prior inconsistent statement of a witness in a deposition to be used as substantive evidence. And Rule 801(d)(2) makes the statement of an agent or servant admissible against the principal under the circumstances described in the Rule. The language of the present [pre-amendment] subdivision is, therefore, too narrow. FED. R. CIV. P. 32, Notes Advisory Committee on 1980 Amendments. Thus, under the plain

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language of RCFC 32(a)(1), a deposition statement that qualifies as the admission of a party opponent under FED. R. EVID. 801(d)(2) need not satisfy any additional requirements under RCFC 32 before it can be used as substantive evidence as trial. As this Court has previously explained, "Rule 32 contains other provisions that permit the admission of deposition testimony at trial, but these provisions are alternatives to Rule 32(a)(1). The alternative provisions act independent of the Federal Rules of Evidence and do not impose additional burdens upon the party seeking to introduce deposition testimony that is already admissible under the Federal Rules and, therefore, Rule 32(a)(1)." Anchor Order at 5. In short, as this Court has repeatedly recognized, the Government's "view of the relationship between the Federal Rules of Evidence and the rules of procedure respecting admissions is erroneous." Globe, 61 Fed. Cl. at 95.2 Although the Government appears to recognize that its arguments are foreclosed by this Court's precedents, see Gov't Opp. at 6 n.3, it provides no meaningful response to the wealth of authority or the careful analysis of text and structure contained in this Court's previous decisions. See, e.g., Long Island, 63 Fed. Cl. at 163-64; Globe, 61 Fed. Cl. at 93-96; Anchor Order at 1-2, 4-7. With only one exception, the cases it cites in support of the arguments discussed above have nothing to do FED. R. EVID. 801(d)(2). Two of these authorities--Schlange-Schoeningen v. Parrish, 767 F.2d 788 (11th Cir. 1985), and American Steel Works v. Hurley Construction Co., 46 F.R.D. 465 (D. Minn. 1969)--do not address the admission of deposition testimony at all. All but one of its remaining cases involve evidentiary or statutory provisions other than FED. R. EVID. 801(d)(2). See Griman v. Makousky, 76 F.3d 151 (7th Cir. 1996) (FED. R. CIV. P. 32(a)(3)(D)-(E)); United States v. Mathis, 559 F.2d 294 (5th Cir. 1977) (FED. R. EVID. 803(24),

Cf. Ryan-Walsh, Inc. v. United States, 39 Fed. Cl. 305, 306 (1997) (deposition testimony that qualifies as party admission under FED. R. EVID. 801(d)(2) "is admissible as substantive evidence under RCFC 32(a)(1)"). 4

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804(5)); Young & Assoc. Pub. Relations, LLC v. Delta Air Lines, Inc., 216 F.R.D. 521 (D. Utah 2003) (FED. R. CIV. P. 32(a)(2), 32(a)(3)(B)); Banks v. Yokemick, 144 F. Supp. 2d 272 (S.D.N.Y. 2001) (FED. R. CIV. P. 32(a)(3)(E)). Indeed, this Court has previously distinguished several of these cases on the ground that "each addresses rules or statutes that explicitly require a showing of unavailability of the witness." Long Island, 63 Fed. Cl. at 163 (distinguishing authorities cited by the Government there, including Griman and Mathis). The Government's sole remaining precedent--Kolb v. County of Suffolk, 109 F.R.D. 125 (E.D.N.Y. 1985)--involved the potential admissions of entire depositions and is distinguishable where, as here, "only discrete portions of certain depositions have been proffered by plaintiff." Anchor Order at 6. More fundamentally, this Court has already determined that Kolb is singularly unpersuasive and has rejected reliance on that decision. See Long Island, 63 Fed. Cl. at 164 ("disagree[ing] with the decision in Kolb"; noting that "this court has been unable to locate any decision that has relied on Kolb for the propositions that Fed. R. Evid. 801(d)(2)(D) requires a showing of unavailability of the witness or that Fed. R. Evid. 801(d)(2)(D) is dependent upon RCFC 32(a);" and rejecting these "propositions [as] contraven[ing] the plain and straightforward text of Fed. R. Evid. 801(d)(2)(D)"). In sum, the Government has simply failed to overcome Northeast's showing that the Ryan, Ware, Riccobono, Burke, Moriarty, and Kovac depositions are admissible under Rule 801(d). (2) The Ryan, Riccobono, Burke, and Kovac Depositions Are Admissible Under RCFC 32(a)(2). Northeast likewise demonstrated that RCFC 32(a)(2) provides a separate and independent ground for admitting the designated portions of the Ryan, Riccobono, Burke, and Kovac depositions. See Motion at 5-6, 8-9. The Government expressly concedes that Kovac's deposition testimony is "admissible under RCFC 32(a)(2)," arguing only that it intends to call Kovac as a wit-

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ness in its case-in-chief, thereby "rendering admission of his deposition testimony redundant, wasteful, and cumulative, and subject to exclusion. See FED. R. EVID. 403." Gov't Opp. at 5. It goes almost without saying, however, that such a conclusory assertion cannot justify exclusion of the designated portions of Kovac's testimony under FED. R. EVID. 403, which allows the exclusion of relevant evidence only "if its probative value is substantially outweighed . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403 (emphasis added).3 Tellingly, the Government points to no authority that even arguably supports its reliance on Rule 403 to block the admission of Kovac's deposition testimony. In addition to explicitly conceding the admissibility under RCFC 32(a)(2) of Kovac's deposition testimony, the Government implicitly concedes the admissibility of the deposition testimony of John Ryan, the Director of the Office of Thrift Supervision's ("OTS") Southeast Region. The Government nowhere contests the admissibility of the designated portions of the Ryan testimony under RCFC 32(a)(2). See Gov't Opp. at 4-5. This leaves only the testimony of Richard Riccobono, the Deputy District Director in the OTS Atlanta District, and John Burke, an Assistant Regional Director in the OTS Northeast Region. Although it is beyond question that both Mr. Riccobono and Mr. Burke at the time of their depositions held senior posts at the OTS and wielded considerable decisionmaking authority, Motion at 8, the Government argues that Messrs. Burke and Riccobono were not officers, directors, or managing agents within the meaning of RCFC 32(a)(2) because they had reporting rela-

See also Commentary on FED. R. EVID. 403 (Stephen A. Saltsburg, et al.) (internal citations omitted): "The drafters of the Rule provided that the probative value must be `substantially' outweighed by these other factors before evidence is excluded. . . . [T]he policy of the Rule is that if the balance between probative value and countervailing factors is close, the Judge should admit the evidence. In other words, there is a presumption in favor of admitting relevant evidence. In order to overcome this presumption, the negative countervailing factors must be demonstrably greater than the probative value of the evidence." 6

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tionships with superior Government officers. See Gov't Opp. at 4-5. As the Government is well aware, however, the fact that a Government official reports to another higher official does not mean that the first Government official lacks "decision-making authority" or cannot "exercise[e] his or her personal discretion in making decisions without obtaining additional authorization from superiors." Globe, 61 Fed. Cl. at 98 (quotation marks omitted). Indeed, given our constitutional system of Government, it is commonplace even for senior executive officials with vast discretionary decision-making authority to have a general reporting relationship with a superior officer. Under the Government's argument, only the testimony of the relative handful of senior Government officers comprising the highest-level management at federal agencies could ever qualify for admission under RCFC 32(a)(2). This is not the law. Ultimately, however, the Court need not even reach the question of whether Messrs. Riccobono and Burke qualify as officers, directors, or managing agents under RCFC 32(a)(2). This is because regardless of whether the designated portions of the Riccobono and Burke depositions are admissible under RCFC 32(a)(2), they are plainly independently admissible under FED. R. EVID. 801(d)(2), as discussed above. (3) All But One of the Designated Depositions Are Also Admissible Under RCFC 32(a)(3)(E). Northeast has also demonstrated that the designated portions of all but one of the depositions (the Riccobono deposition) are independently admissible under RCFC 32(a)(3)(E), which presumptively allows the admission for substantive purposes of deposition testimony of witnesses more than 100 miles from the place of trial or hearing. See Motion at 6, 9-10. In response, the Government attempts to distinguish the district and circuit court authorities cited by Northeast on the ground that this Court has nationwide jurisdiction and can issue subpoenas to witnesses located more than 100 miles distant from the Court. See Gov't Opp. at 6-7. Of course,

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were the Government's argument sound, it would be difficult to understand why RCFC 32 (which applies only in this Court) includes a 100-mile provision at all. Indeed, given that RCFC 32(a)(3)(D) expressly allows the introduction of deposition testimony where "the party offering the deposition has been unable to procure the attendance of the witness by subpoena," the Government's logic would render Rule 32(a)(3)(E) superfluous. The Government's argument is not sound, however. Even in cases where the district courts have nationwide subpoena power, they have held "that admissibility of depositions under the 100 mile provision of Rule 32 is not dependent on the subpoena power of the court." United States v. International Bus. Machs. Corp., 90 F.R.D. 377, 380 (S.D.N.Y. 1981) (rejecting Government's argument that 100 mile provision was unavailable where 15 U.S.C. § 23 authorized nationwide subpoenas in antitrust suits brought by the United States). As the International Business Machines court explained, a principal objective of the 100 mile provision is "to permit deposition use when the deponent would be unduly inconvenienced by requiring his presence at trial, even if the deponent was subject to subpoena power," and this provision must accordingly be understood to reflect its drafters' view that "it would be too burdensome to require a deponent beyond the distance of 100 miles to appear at trial." 90 F.R.D. at 380.4 It is true that RCFC 32(a)(3)(E) is not absolute, providing for the admission of deposition

Cf. Ueland v. United States, 291 F.3d 993, 996-97 (7th Cir. 2002) (Rule "does not condition admissibility on the witness' inability to show up in court; 100 miles is a bright line"); Daigle v. Maine Med. Ctr., 14 F.3d 684, 691-92 (1st Cir. 1994) ("Distance is the decisive criterion: so long as a witness is shown to be more than one hundred miles from the place of trial, the admissibility of deposition testimony under the aegis of [FED. R. CIV. P.] 32(a)(3)(B) is not contingent upon a showing that the witness is otherwise unavailable."). See also 7 JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE ­ CIVIL § 32.24[1][C] (3d ed. 2006) ("A witness's deposition may be used at trial under Rule 32(a)(3)(B) if the witness is at a distance greater than 100 miles from the place of trial or hearing, even though the witness is subject to the court's subpoena power.").

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testimony "if the court finds . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing, unless the court also finds . . . that it is not in the interest of justice, with due regard to the importance of presenting the testimony of witnesses orally in court, to allow the deposition to be used." RCFC 32(a)(3) (emphasis added). It is evident from the structure of this provision that once a party has established that a witness is more than 100 miles distant, there is a presumption that the deposition will be admissible. Obviously, this presumption cannot be overcome by the assertion of vague generalities, such as those offered by the Government here, that would be applicable in every case. See Gov't Opp. at 7-8 (invoking only "the courts' traditional strong preference for live testimony" and "this Court's practice of routinely granting authorization to subpoena remote witnesses for trial"). To the extent the Government seeks to require Northeast not only to establish (as it has) that the deponents are more than 100 miles distant but also that exceptional circumstances justify admission of the designated portions of their depositions, it seeks to turn RCFC 32(a)(3)(E)'s textual presumption on its head. Not only would such a result contravene persuasive authority,5 it would also render the 100-mile provision of RCFC 32(a)(3)(E) superfluous, for the immediately following catchall provision independently allows for the admission of deposition testimony where the court finds "that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used," RCFC 32(a)(3)(F). Cf. Ueland, 291 F.3d at 996 (different subsections of Rule 32(a)(3) provide independent and alternative bases for admission of deposition testimony).

See Houser v. Snap-on Tools Corp., 202 F. Supp. 181, 189 (D. Md. 1962) (holding that "the mere absence of the deponent from the 100 mile area is sufficient, and the party attempting to submit the deposition into evidence need not proffer an excuse for the failure of the deponent to appear in court"); accord International Bus. Machs., 90 F.R.D. at 380 n.5.

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Especially given the fairly limited (though important) nature of the deposition testimony at issue, the Government has offered nothing that would justify a finding that it is not in the interest of justice to allow the designated deposition excerpts to be used at trial. There is simply no good reason why theses witnesses ­ many of whom are retired ­ should be forced to travel to Washington from such places as Utah (Brent Beesley) or New England (Messrs. Gridley, Elliott, and Peckham) to repeat the testimony they have already provided in deposition. Moreover, in light of the Government's suggestion that "[l]ive testimony is necessary to provide the Court with an opportunity to evaluate the witness's demeanor," Gov't Opp. at 3, it is particularly noteworthy that all of the deposition testimony at issue was provided by current or former Government officials. Northeast is not seeking to admit deposition testimony provided by its own officers; rather it is seeking to admit limited testimony on uncontroversial topics by current and former Government regulators. The Government cannot seriously maintain that it somehow is critically important for these witnesses to testify in person so that the Court can study their demeanor in order to assess their credibility. Indeed, focusing for the moment on the four witnesses whose testimony is not independently admissible as party admissions, it is apparent that Northeast seeks to admit the testimony of retired senior Government officials who devoted decades of service to the Government and whose credibility cannot legitimately be questioned by the Government. Mr. Beesley was the Director of the Office of the FSLIC, Mr. Elliott was the President of the Federal Home Loan Bank of Boston, Mr. Gridley was the District Director of the OTS' Northeast District, and Mr. Peckham was an Assistant Director of that office. Furthermore, the Government has had the opportunity to depose these witnesses with respect to any topic that is relevant to this case. Compelling these witnesses to testify in person would serve no purpose other than to inconvenience the witness and unduly prolong the trial.

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For the foregoing reasons, as well as for the reasons stated in the Motion, Northeast respectfully requests that the Court enter an order admitting the deposition testimony identified in the Motion as substantive evidence at trial. Respectfully submitted,

s/Charles J. Cooper Charles J. Cooper COOPER & KIRK, PLLC 555 Eleventh Street, N.W., Suite 750 Washington, D.C. 20004 (202) 220-9600 (202) 220-9601 (fax) Counsel of Record Of Counsel: Michael W. Kirk Vincent J. Colatriano David H. Thompson COOPER & KIRK, PLLC 555 Eleventh Street, N.W., Suite 750 Washington, D.C. 20004 (202) 220-9600 (202) 220-9601 (fax) Dated: September 8, 2006

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of September, 2006, I caused to be served by U.S. Mail copies of the foregoing on the following counsel:

Tarek Sawi, Esq. Commercial Litigation Branch Civil Division - Room 12600 U.S. Department of Justice 1100 L Street, NW Washington, D.C. 20530

s/Charles J. Cooper

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