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

Case 1:05-cv-01042-CFL

Document 73

Filed 03/13/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE DALLES IRRIGATION DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-1042C (Judge Lettow)

DEFENDANT'S REPLY TO PLAINITFF'S RESPONSE TO OUR MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTION TO THE COURT'S CONSIDERATION OF APPENDICES A-D OF PLAINTIFF'S CLOSING ARGUMENT On February 29, 2008, defendant sought leave from the Court to file its objection to the District's inclusion of appendices A-D to its post-trial closing argument. The Government objected primarily because the Court closed the evidentiary record in this case, save for nonevidentiary materials, which might be helpful, such as cases and publications. Tr. 822:8-12. The Federal Rules of Evidence grant the Court the authority to place limits, including a restriction on when evidence may be received pursuant to Fed. R. Evid. 611. The Court exercised its discretion by closing the record at the conclusion of trial. The District should not be permitted to introduce evidence once the record has been closed. The District's response suggests that (1) the appendices are non-evidentiary, and (2) the Court would take judicial notice of the proffered evidence in any case. The former suggestion is without merit because the documents are only being introduced for their evidentiary value. As to the second, the Rules provide: A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Case 1:05-cv-01042-CFL

Document 73

Filed 03/13/2008

Page 2 of 3

Fed. R. Evid. 201. However, the time for asking the Court to take judicial notice passed when the evidentiary record was closed. Additionally, even if the Court were to take judicial notice of these appendices, their admission is conditioned upon their being relevant pursuant to the Rules, which state: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. The appendices attached to the District's closing argument are not relevant to any fact of consequence in this case. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director OF COUNSEL CLARK MILLER U.S. Department of the Interior Attorney-Advisor Field Solicitor's Office 960 Broadway Ave., Suite 400 Boise, ID 83706 Tel: (208) 334-1906 Fax: (208) 334-1918 s/ Armando A. Rodriguez-Feo ARMANDO A. RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 307 3390 Fax: (202) 514-8624 Attorneys for Defendant March 13, 2008

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Case 1:05-cv-01042-CFL

Document 73

Filed 03/13/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 13th day of March, 2008, a copy of the foregoing ADEFENDANT'S REPLY TO PLAINITFF'S RESPONSE TO OUR MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTION TO THE COURT'S CONSIDERATION OF APPENDICES A-D OF PLAINTIFF'S CLOSING ARGUMENT@ 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. The parties may access this filing through the Court=s system. s/Armando A. Rodriguez-Feo