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

Case 1:05-cv-00748-CCM

Document 114

Filed 03/31/2008

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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. THE UNITED STATES OF AMERICA, Defendant. STOBIE CREEK INVESTMENTS LLC, by and through JFW INVESTMENTS LLC, Tax Matters and Notice Partner, Plaintiff v. THE UNITED STATES OF AMERICA, Defendant.

Case No. 05-748T

Case No. 07-520 T Consolidated with 05-748T Judge Christine O.C. Miller

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR LEAVE TO FILE DEPOSITION TRANSCRIPTS Plaintiffs, Stobie Creek Investments LLC ("Stobie Creek"), JFW Enterprises, Inc. and JFW Investments LLC, Tax Matters and Notice Partners, and Welles Asset Management, Inc., DKW Senior Enterprises, Inc., DKW Junior Enterprises, Inc., VJ Enterprises, Inc., PCW Enterprises, Inc., CSW Asset Management, Inc., DKW Senior Investments LLC, DKW Junior Investments LLC, VJ Investments LLC, PCW Investments LLC, CSW Investments LLC, and Family trust under the David K. Welles 1994 Trust, as parties to this action (collectively the "Plaintiffs"), by and through their attorneys, submit the following response to Defendant's motion for leave to file deposition transcripts.

Case 1:05-cv-00748-CCM

Document 114

Filed 03/31/2008

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On March 12, 2008, Defendant filed a Motion for Leave to file the Deposition Transcripts of Jason Shih and Stephen Bores. The Court directed Plaintiffs to respond to Defendant's motion by March 31, 2008. A. Jason Shih

Plaintiffs respectfully request that the Court deny Defendant's motion with respect to deposition designations for Jason Shih. Mr. Shih, a former employee of Deutsch Bank Alex Brown, was deposed in this case and refused to answer any question asked by Defendant's counsel other than his name and address, relying on his Fifth Amendment privilege against selfincrimination. Defendant seeks admission of Mr. Shih's deposition transcript. Mr. Shih's testimony ­ consisting of assertions of his Fifth Amendment privilege ­ is inadmissible to the same extent that this Court in its March 21, 2008 Order (Docket No. 107) found similar Fifth Amendment assertions inadmissible as to Donna Guerin, Paul Daugerdas, John Ivsan, David Parse, Craig Brubaker, and Perry Parker.1 Accordingly, this court should deny Defendant's motion as to deposition designations for Jason Shih. B. Stephen Bores

In response to Defendant's motion for leave to file Stephen Bores' deposition designations, Plaintiffs reiterate their objections to Mr. Bores' testimony, filed in Plaintiffs' Objections to Defendant's Proposed Witnesses and Exhibits on February 8, 2008 (Docket No. 67) and Plaintiffs' Motion in Limine to Exclude Non-Party Pattern Evidence (Docket No. 79). However, on March 20, 2008, this Court denied Plaintiffs' Motion in Limine to Exclude NonParty Pattern Evidence (Docket No. 106). Therefore, Plaintiffs attach hereto as Exhibit A a chart

On March 28, 2008, Plaintiffs filed a Motion for Partial Reconsideration of this Court's order of March 21, 2008. 2

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Case 1:05-cv-00748-CCM

Document 114

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showing Defendant's designations and Plaintiffs' counter-designations as to the deposition transcript of Stephen Bores. Therefore, for the reasons set forth above, Plaintiffs respectfully request that the Court enter an order denying Defendant leave to file Mr. Shih's deposition excerpts and, over Plaintiffs' continued objection, granting Defendant leave to file Mr. Bores' deposition excerpts subject to the counter-designations by Plaintiffs. Dated: March 31, 2008 Respectfully Submitted SCHIFF HARDIN LLP

/s/ Robert E. Kolek Attorneys for Plaintiffs Robert E. Kolek Thomas R. Wechter Matthew C. Crowl Colleen M. Feeney Ayad P. Jacob SCHIFF HARDIN LLP 6600 Sears Tower Chicago, IL 60606 Phone: 312-258-5500 Fax: 312-258-5600

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Case 1:05-cv-00748-CCM

Document 114

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CERTIFICATE OF SERVICE I hereby certify that on the 31st of March, 2008, the undersigned counsel caused to be electronically filed Plaintiffs' Response to Defendant's Motion for Leave to File Deposition Transcripts using the CM/ECF system, which will send notification of such filing to the following named counsel of record: Stuart D. Gibson, Esq. Cory A. Johnson, Esq. Trial Attorney Tax Division U. S. Department of Justice P.O. Box 26 Ben Franklin Station Washington, D.C. 20044

/s/ Colleen M. Feeney

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