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

Case 1:06-cv-00305-MBH

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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

THE UNITED STATES' MOTION FOR LEAVE TO FILE DEPOSITION TESTIMONY

The United States, pursuant to RCFC Appendix A, ¶ 15(b) and RCFC 32, moves for leave to file portions of certain deposition transcripts as substantive evidence in this case. Each of the depositions sough to be admitted were taken in this case. Each of these witnesses were involved in ancillary matters that may be covered by other witnesses. While their testimony is useful and necessary, it would not be efficient or cost effective to have these witnesses travel to Washington, D.C. for trial. The witnesses the United states intends to present by deposition are as follows: Jeanette Li: Ms. Li resides in New York, New York and served as an administrative assistant for Consolidated Edison. Her relevant testimony, including testimony concerning
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document creation and retention and office management, can be adequately presented through her deposition transcript. The United States seeks to introduce the following testimony (page:line) 5:10 8:9-8:15 12:13-12:16 13:11-13:19 14:13-14:25 15:4-16:11 18:14-19:21 37:10-38:12 48:11-49:16 Dawson Newberry: Mr. Newberry resides in New York, New York and serves as the director of information services for Consolidated Edison Energy and Consolidated Edison Development. His relevant testimony, including testimony concerning Plaintiff's document retention policy, can be adequately presented through his deposition transcript. The United States seeks to introduce the following testimony (page:line): 6:16-6:23 7:11-11:12 12:19-13:4 13:10-13:24 14:7-15:11

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15:15-16:2 17:9-17:15 17:19-18:7 23:2-24:4 24:12-24:18 28:16-28:25 29:5-30:3 Luther Tai: Mr. Tai resides in Basking Ridge, New Jersey and formerly served on Consolidated Edison's Co. of New York, Inc.'s Corporate Planning Department. His relevant testimony, including testimony concerning Plaintiff's alleged business purpose, can be adequately presented through his deposition transcript. The United States seeks to introduce the following testimony (page:line): 6:9-6:14 9:4-9:9 15:25-16:15 16:22-18:4 24:22-27:25 28:7-31:17 32:23-33:15 33:24-34:3 43:12-44:3 77:9-77:11

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80:7-80:15 83:20-84:2 97:11-97:23 118:22-119:6 120:8-120:24 121:9-121:16 122:10-122:16 130:12-133:22 134:11-135:12 Terrence Walsh: Mr. Walsh resides in New York, New York and serves as the director of information technology planning in the information resources department for Consolidated Edison. His relevant testimony, including testimony concerning Plaintiff's document retention policy, can be adequately presented through his deposition transcript. The United States seeks to introduce the following testimony (page:line): 6:17-7:4 8:14-9:25 10:8-10:13 11:8-11:11 13:23-14:22 15:11-16:23 17:3-19:16 20:13-21:3

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Anton Zauner: Mr. Zauner resides in Greenwich, Connecticut. Mr. Zauner worked for Capstar financial Partners and represented EZH in the transaction. His relevant testimony, including testimony concerning the transaction, can be adequately presented through his deposition transcript. The United States seeks to introduce the following testimony (page:line): 5:7-5:12 7:15-7:23 10:5-10:11 15:8-15:14 19:10-19:21 34:18-36:2 44:12-47:2 47:18-49:18 53:14-55:10 58:12-58:15 58:21-58:25 88:1-88:11

Respectfully submitted,

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s/ David N. Geier DAVID N. GEIER Attorney of Record U.S. Department of Justice, Tax Division Post Office Box 26 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-3448 Facsimile: (202) 307-0054 EILEEN J. O'CONNOR Assistant Attorney General 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 s/ Steven I. Frahm Of Counsel September 21, 2007

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