Free Memorandum - District Court of Federal Claims - federal

Case 1:06-cv-00305-MBH

Document 89

Filed 11/22/2007

Page 1 of 2

No. 06-305 T (Judge Marian Blank Horn)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES Plaintiff, v. THE UNITED STATES, Defendant. RESPONSE OF THE UNITED STATES TO PLAINTIFF'S MEMORANDUM IN OF ORAL MOTION TO LIMIT USE OF DEPOSITION TRANSCRIPT EXCERPTS IN THE EXPERT REPORT OF SAMUEL RAY

Plaintiff's submitted an unfiled Memorandum in support of its ore tenus Motion to limit the Court's use of deposition transcript excerpts incorporated in the expert report of Samuel Ray. Plaintiff, without explanation, has chosen not to file and docket its Memorandum. Plaintiff does not take issue with Mr. Ray's use of information, but rather are concerned about the Court's reliance on the information despite the fact that Plaintiff had the opportunity to cross-examine Mr. Ray with regard to the information and challenge, if appropriate, its accuracy. In fact, Plaintiff chose to do so with respect to the testimony of Mr. Mintun, questioning Mr. Ray about the impact other sections of Mr. Mintun's deposition transcript had on his view of those sections cited in his report. Plaintiff chose not to question Mr. Ray concerning his reliance on the testimony of Mr. DePlautt, Ms. McCartney or Ms. Freilich during its cross-examination.

Case 1:06-cv-00305-MBH

Document 89

Filed 11/22/2007

Page 2 of 2

Plaintiff's own experts have also relied quite extensively (and properly) on information not in the record and not otherwise admissible.1 The information in Mr. Ray's reports, like the information relied upon by Plaintiff's experts, is not, of itself, offered as substantive evidence in this case. However, such information is integral to an understanding of the opinions of the experts, including Mr. Ray.

Respectfully submitted, s/ David N. Geier DAVID N. GEIER Attorney of Record U.S. Department of Justice, Tax Division Post Office Box 26 Washington, D.C. 20044 Telephone: (202) 616-3448 Facsimile: (202) 307-0054 DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section JOSEPH A. SERGI ADAM R. SMART KAREN M. GROEN Trial Attorneys November 22, 2007

Plaintiff's experts have referred to and indeed at times quoted from materials not in evidence in this case. See, e.g., Report of Roman L. Weil, Exhibit 10077 at notes 33, 43, page 20272, and n. 55. Similarly, see the Report of A.J. Goulding (Exhibit 10074) in which he cites to numerous materials not offered into evidence. Id. at n.15, 20, 25 and 36 (the latter two in which Goulding relied on an interview conducted by a subordinate with a third party). These references are only offered by way of example and are certainly not meant to be exhaustive of the point. -2-

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