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

Case 1:05-cv-00748-CCM

Document 34-4

Filed 03/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

STOBIE CREEK INVESTMENTS, LLC, JFW ENTERPRISES, INC., Tax Matters and Notice Partner, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

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No. 05-748 T (Judge Miller)

DECLARATION OF CORY A. JOHNSON IN RESPONSE TO PLAINTIFF'S MOTION TO COMPEL DEPOSITION OF RICHARD STARKE Cory A. Johnson, in accordance with 28 U.S.C. §1746(2), declares: 1. I am a Trial Attorney with the Tax Division of the United States Department of

Justice, in Washington D.C. I am assigned as co-counsel for the United States in this case. 2. I make this declaration to respond to inaccurate statements contained in the

Affidavit of Robert E. Kolek, filed as Exhibit B in support of the motion to compel (the Affidavit). 3. On the afternoon of February 13, 2007, lead counsel Stuart Gibson and I

participated in a conversation with Thomas Wechter, one of the attorneys for the plaintiff, about the deposition of Richard Starke that had been scheduled for February 15. During that conversation, we asked whether, in light of the IRS's decision not to authorize Starke to testify, the plaintiff would insist on Starke appearing at his deposition on February 15, and expressly refuse to testify. Mr. Wechter indicated that they were still reviewing the transcripts of Starke's

Case 1:05-cv-00748-CCM

Document 34-4

Filed 03/05/2007

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prior testimony, and had not yet decided how they wanted to proceed, but that Mr. Starke did not need to appear on February 15th. 4. On February 27, 2007, I had a phone conversation with Robert Kolek about issues

concerning discovery. During that conversation, he made no mention of his intention to file a motion to compel Starke to testify, nor did he mention anything about limiting the scope of that deposition, or anything about new, clarifying questions that needed to be asked of Mr. Starke. 5. I had no discussions with counsel for the plaintiff about the Starke deposition

between February 13 and February 27, 2007. In fact, if Mr. Kolek determined that he needed to ask additional follow up questions, as stated in ¶4 of the Affidavit, he never shared them with me. Finally, at no time did Mr. Kolek ever discuss with me any request to, "inquire of Mr. Starke new or follow-up questions to his previous testimony," as stated in ¶5 of the Affidavit. I declare under penalty of perjury that the foregoing is true and correct. Signed in Washington, D.C.

Dated: March 5, 2007

s/ Cory A, Johnson CORY A. JOHNSON

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