Free Motion for Leave to File - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTIONS TO PLAINTIFF'S REVISED WITNESS AND EXHIBIT LISTS Pursuant to paragraph 13(c) of Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests leave to file its objections to the plaintiff's revised exhibit and witness lists of plaintiff, Francisco Javier Rivera Agredano, which were filed on January 8, 2008. The proposed objections are attached hereto as Exhibit A to this motion. In this case, the plaintiff's original final witness and exhibit lists did not comply with the Rules, and the Court ordered that the plaintiff recompose and refile his lists no later than January 8, 2008. See January 4, 2008 order regarding plaintiff's witness and exhibit lists, dkt. no. 80. The January 4 order did not provide a time by which the defendant could file any objections it may have to these new lists. Id. The plaintiff filed his revised lists after the close of business on January 8, 2008. Counsel for the defendant immediately began his review of these lists, as well as the copies of the exhibits that the plaintiff had recently provided to the defendant. Upon the completion of this review, counsel for the defendant identified a small number of objections to the plaintiff's proposed witnesses and exhibits, and immediately began drafting the present motion and attached statement of objections.

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Paragraph 13(c) of Appendix A of the RCFC provides that, "if anything new or unexpected is discovered, it may be addressed in a brief response which must be filed under cover of a motion for leave immediately upon learning of it." We respectfully suggest that this provision is applicable in this instance, and counsel's diligence in reviewing the plaintiff's revised lists and preparing these materials satisfy the Rule's immediacy requirement. Accordingly, we respectfully request that the Court grant leave to file the defendant's statement of objections to the plaintiff's revised witness and exhibit lists, attached hereto as Exhibit A. Should the Court grant such leave, we further request that the Court direct the Clerk to file Exhibit A to this motion as a separate docket entry in this case. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Patricia M. McCarthy (by Steven J. Gillingham) PATRICIA M. McCARTHY Assistant Director s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, DC 20530 Tel. (202) 616-0170 Fax. (202) 514-8624 January 9, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on January 9, 2008, a copy of the foregoing "MOTION FOR LEAVE TO FILE DEFENDANT'S OBJECTIONS TO PLAINTIFF'S REVISED WITNESS AND EXHIBIT LISTS" 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/ Devin A. Wolak DEVIN A. WOLAK

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EXHIBIT A

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

DEFENDANT'S OBJECTIONS TO PLAINTIFF'S REVISED WITNESS AND EXHIBIT LISTS Pursuant to paragraph 13(c) of Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits the following objections to the revised exhibit and witness lists of plaintiff, Francisco Javier Rivera Agredano, which were filed on January 8, 2008. I. Objections To Plaintiff's Witness List Plaintiff's Witness 15: Michael Levine. The defendant objects to plaintiff's witness 15, Mr. Michael Levine, upon the basis that his anticipated testimony (as stated in the plaintiff's final witness list at p. 9) has not been previously disclosed in this litigation. Accordingly, Mr. Levine's expert testimony does not comply with RCFC 26(a)(2) or 26(b)(4), and should be excluded. Specifically, the plaintiff's witness list states that Mr. Levine will provide his expert opinion about: (1) "the reasonableness of the policies and directives regarding restricting damage to seized vehicle[s]"; and (2) "[the reasonableness of] the policies, directives, and procedures involved in the instant case for re-inspection searches and the initial search and seizure." Pls. Witness List at 9. Mr. Levine's expert report, on the other hand, contains eight expert opinions, none of

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which addresses Customs' policies and directives regarding restricting damage to seized vehicles or Customs' initial and re-inspection search policies and procedures. See Exhibit 1 to these objections (Pls. Exhibit 22) at 16-19. Rather, Mr. Levine's opinions focus upon whether the search performed upon the 1987 Nissan Pathfinder satisfied national Drug Enforcement Agency search, seizure, and narcotics investigation standards as he understands them; whether Customs' handling of the 1987 Nissan Pathfinder after the initial search complied with those same, nonCustoms policies and procedures;1 and whether the allegedly substandard initial search in this case is evidence that 1992 Congressional findings concerning Customs' search and seizure performance continued through 2001. Id. Indeed, Customs' written policies and procedures concerning searches and seizures (pls. exhibit 39) are not listed among the materials Mr. Levine considered in forming his expert opinions. Id. at 9-15. Thus, the plaintiff proposes to offer Mr. Levine to present expert opinions that have not been previously disclosed in this litigation and are not included in his expert report. Therefore, Mr. Levine's testimony should be excluded. Any of plaintiff's witnesses who will testify concerning plaintiff's emotional distress. Consistent with our pretrial memorandum of facts and law, the defendant objects to any witness to the extent he or she will testify about the plaintiff's alleged emotional distress. It is our position that emotional distress damages are not available in this contract action as a matter of law, and the presentation of evidence relating to this issue would be irrelevant. Accordingly, any such testimony should be excluded under Rules 401 and 403 of the Federal Rules of Evidence,

And, illogically, how that same handling subsequent to the initial search caused the initial search to be substandard. See Ex. A at 17, specifically opinions "D," "F," and "G." -2-

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which bar irrelevant, prejudicial, and confusing evidence from being presented at trial. II. Objections To Plaintiff's Exhibit List Plaintiff's Exhibit 11. The defendant objects to plaintiff's exhibit 11 upon the basis that these documents relate to a separate legal proceeding that is irrelevant to this case. Accordingly, the documents should be excluded under Rules 401 and 403 of the Federal Rules of Evidence, which bar irrelevant, prejudicial, and confusing evidence from being presented at trial. Additionally, these documents have not been previously produced or disclosed in this litigation. Plaintiff's Exhibits 14, 15, and 36. The defendant objects to plaintiff's exhibits 14, 15, and 36 upon the basis that they are irrelevant to this case. The documents are correspondence transmitted between the agency and the plaintiff's attorneys in relation to his Freedom of Information Act ("FOIA") requests concerning files and documents relating to the search and seizure of the 1987 Nissan Pathfinder at issue in this case. The object of the plaintiff's FOIA request -- the agency's files and documents -- are relevant to these proceedings, and appear elsewhere in the plaintiff's exhibit list. The plaintiff's attorneys' correspondence to obtain those files and documents are not relevant to this case. Accordingly, the documents should be excluded under Rules 401 and 403 of the Federal Rules of Evidence, which bar irrelevant, prejudicial, and confusing evidence from being presented at trial. Plaintiff's Exhibits 19, 20, 21, 23, 24, 25, 26, 27, 34, and 35. The defendant objects to plaintiff's exhibits 19, 20, 21, 23, 24, 25, 26, 27, 34, and 35 upon the basis that they are Spanishlanguage documents and are not accompanied by an English translation. Additionally, plaintiff's exhibits 34 and 35 have not been have not been previously produced or disclosed in this litigation.

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Plaintiff's Exhibit 28. The defendant objects to plaintiff's exhibit 28 upon the basis that it is irrelevant and prejudicial. The document is a computer printout of a Kelly Blue Book resale estimate for a 1987 Nissan Pathfinder in "excellent" condition, stating a resale value of $5,425. The plaintiff has previously admitted, and the documentary evidence overwhelmingly demonstrates that the plaintiff paid $2,600 for the 1987 Nissan Pathfinder at issue in this case. Accordingly, the documents should be excluded under Rules 401 and 403 of the Federal Rules of Evidence, which bar irrelevant, prejudicial, and confusing evidence from being presented at trial. Plaintiff's Exhibits 36 and 37. The defendant objects to plaintiff's exhibits 36 and 37 upon the basis that they have not been previously produced or disclosed in this litigation, and this non-production and non-disclosure continues despite repeated assurances from the plaintiff's attorney that these exhibits will be disclosed.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Patricia M. McCarthy (by Steven J. Gillingham) PATRICIA M. McCARTHY Assistant Director s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor -4-

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Washington, DC 20530 Tel. (202) 616-0170 Fax. (202) 514-8624 January 9, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on January 9, 2008, a copy of the foregoing "DEFENDANT'S OBJECTIONS TO PLAINTIFF'S REVISED WITNESS AND EXHIBIT LISTS" 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/ Devin A. Wolak DEVIN A. WOLAK

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EXHIBIT 1

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