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

Case 1:05-cv-01042-CFL

Document 67

Filed 01/14/2008

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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 RESPONSE TO PLAINTIFF'S MOTION TO CORRECT TRIAL TRANSCRIPT Pursuant to Rule 7 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, responds to The Dalles Irrigation District's ("The Dalles") motion to correct the trial transcript. The Government opposes this motion for the simple reason that it has no way of verifying whether The Dalles's corrections are based upon anything more than the opinion of counsel as to what the witness should have said. While most of the changes appear to be grammatical in nature, and of little consequence, neither party has verified what the witness actually said on the record. For example, on page 620, line 13 of the transcript, counsel for The Dalles suggests that "Seattle" should be replaced by "BPA." Pl. Mot. at 1. While that may make sense to him, we cannot verify that the witness actually said anything else but "Seattle" as recorded in the verbatim transcript. Accordingly, we cannot agree with The Dalles that the purported errors in the trial transcript are the result of the court reporter not transcribing the testimony correctly. Correction of the trial transcript should not be based upon a post hoc review of the record. Rather it should be based upon a careful review of the audio transcript to verify what was actually said. If the court reporter charged with making the transcript can verify that the

Case 1:05-cv-01042-CFL

Document 67

Filed 01/14/2008

Page 2 of 3

proposed changes are appropriate, we will not object. Otherwise, counsel for The Dalles has not provided any legal basis which would justify an order from this Court altering the record of the proceedings. For the foregoing reasons, we respectfully request that the Court deny The Dalles's motion to correct the trial transcript. Respectfully submitted, JEFFREY S. BUCHOLZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director s/ Armando Rodriguez-Feo ARMANDO RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tel: (202) 307-3390 Fax: (202) 514-8624 Attorneys for Defendant January 13, 2008

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Case 1:05-cv-01042-CFL

Document 67

Filed 01/14/2008

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 13th day of January, 2008, a copy of the foregoing A DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO CORRECT TRIAL TRANSCRIPT@ 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 Rodriguez-Feo