Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 346

Filed 09/10/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. (Senior Judge Merow)

No. 00-697C

PLAINTIFF'S MOTION REGARDING ADMISSION OF EXHIBITS AT TRIAL Wisconsin Electric Power Company ("WE") files this motion to identify certain exhibit issues for resolution at trial. I. BACKGROUND

During the pretrial conference in this matter, the Court permitted the Government to revise certain objections to WE's Exhibits by August 31, 2007. The Government filed Revised Objections to WE's Exhibits on August 31, 2007.1 For some WE Exhibits, the Government withdrew its previously stated objections. For others, the Government stated new objections. WE requests that the Court admit certain exhibits into evidence and overrule objections to other exhibits for the following reasons. II. A. EXHIBIT ISSUES FOR RESOLUTION

Exhibits To Which The Government Added Objections on August 31, 2007 The Court permitted the Government to voice objections by August 31, 2007 to a

discrete set of exhibits to which the Government had not already objected.

WE was dismayed that the Government did not indicate where its revised objections were different from its prior objections. When WE revised its exhibit list in June 2007, WE provided the Government with a specific list of all changes to the document.
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It is a problem. I see the problem for trial purposes. I think probably the best solution is to provide that Defendant promptly address the exhibits in your C section and provide, if there are valid objections, provide them, or if there aren't valid objections, they will be admitted into evidence, and we can address that on the first day opening of trial. Pretrial Conference Transcript, 25:11-18 (emphasis added). The exhibits in the "C section" were those noted in WE's pretrial Motion Regarding Exhibits, filed August 28, 2007, which were exhibits to which the Government had previously stated "Document Not Produced ­ Reserve All Objections." The Court did not carve out other WE exhibits to which the Government could to voice new objections. Absent the Court's permission to supplement objections and according to the Rules of the Court of Federal Claims ("RCFC"), any new Government objections to WE Exhibits are untimely. See RCFC 7.2. Accordingly, WE requests that the Court overrule the following Government objections that were first voiced in the Government's August 31, 2007 Revised Objections: Plaintiff Exhibit 371 377 690.1 through 690.9 728.1 through 728.28 740.1 through 740.126 1008 1015 1017 1018 1021 1022 1023 1024 1025 1026 1027 1029 1031 1032 1033 B. New Government Objection Foundation Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation, Hearsay Authentication, Foundation, Hearsay Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation Authentication, Foundation, Hearsay Authentication, Foundation, Hearsay Authentication, Foundation, Hearsay Authentication, Foundation Authentication, Foundation, Hearsay Authentication, Foundation

Exhibit to Which The Government Still Reserves Objections -2-

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In its Revised Objections, for WE Exhibit 668, the Government stated "Objection reserved ­ Exhibit not produced." In fact, WE produced this exhibit by June 6, 2007, as was the case with all WE Exhibits. The Court permitted the Government to object to any such exhibit by August 31, 2007. The Government's reservation of objections is invalid and any potential objections would be untimely. WE moves to admit into evidence WE Exhibit 668. III. CONCLUSION

For the foregoing reasons, WE respectfully requests that the Court provide the specific relief requested above, namely, the overruling of certain Government objections to certain, identified WE Exhibits and the admission of certain, identified WE Exhibits. Dated: September 10, 2007 Respectfully submitted, s/Richard W. Oehler by s/Emily C.C. Poulin Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8419

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1675

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that, on September 10, 2007, I caused a copy of the foregoing "Plaintiff's Motion Regarding Admission of Exhibits at Trial" to be 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/ Emily C.C. Poulin Emily C.C. Poulin

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