Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:05-cv-00400-FMA

Document 63-3

Filed 12/06/2007

Page 1 of 3

LAW OFFICES OF

JAMES W. MYART, JR., P.C.
"THE PRESTON HOUSE"
1104 DENVER BLVD., SUITE 300 SAN ANTONIO, TEXAS 78210 (210) 533-9461 FAX: (210) 533-4815 [email protected]

November 6, 2007 Mr. Devin Wolak, Esquire U. S. Department of Justice Civil Division 1100 L Street, NW Washington, DC 20005 via e-mail only

Ref: Stovall v. USA, Cause # -05-400C (Judge Allegra): Offer on Discovery: ADR Preparation; Motion to Set a Trial Date Dear Mr. Wolack: Pursuant to Judge Allegra's instruction in the August 27, 2007 Hearing, I am addressing the following matters. 1. We have had two recent conversations. a. b. I indicated that I would not be filing a second continuance motion. On November 5, 2007, we spoke concerning 1. the discovery in regards to the similar Resolution Agreements. I explained to you that pursuant to Rule 406, Federal Rules of Evidence that I was entitled to the agreements. The rule follows:
Rule 406. Habit; Routine Practice.
(a) Admissibility. Evidence of the habit of an individual or of the routine practice of a person other than an individual, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the individual or other person on a particular occasion was in conformity with the habit or routine practice.

Case 1:05-cv-00400-FMA

Document 63-3

Filed 12/06/2007

Page 2 of 3

Mr. Devin Wolak, Esquire U. S. Department of Justice November 6, 2007 Page 2

I believe I further indicated that I was sure you needed to think about the rule. If I am incorrect in this statement, I state here that I believe the USDA is obligated to provide the agreements. I further believe that it is unnecessary for me to have to brief the Court on this issue if the USDA would just comply with the rules. Of course, the Court has ordered that I file a brief on the matter. I will do of course. 2. I indicated that I would likely simultaneously file a motion for a trial date. I suggested that I knew you would have to contact your superiors as to the USA'S position on such a motion.

Devin, please let me know at your earliest convenience the USA'S position on this proposed motion. Please allow me to again raise the ADR issue. Devin, in accordance with my consistent position and prior statements with you regarding settlement discussions, I again urge a settlement conference in this matter. I realize that you must get authority to enter settlement discussion. I request that you do so as soon as is practical. I would like to mediate this case this month or in early December. Please indicate the USA'S postion on mediation of this case. I believe a mediation could be fruitful and that it has a plausible chance of resolving this matter. Please know that I intend to comply with Section two of Judge Allegra's order regarding an affidavit from me regarding my knowledge, to wit: On or before September 14, 2007, plaintiff's counsel shall file a declaration or affidavit setting forth his personal knowledge regarding Mr. Clyde Thompson's involvement, categorically or specifically, in the drafting, negotiation, or alleged breach of the Stovall settlement agreement. Please be further informed that I will also submit an affidavit from Mr. Stovall chronicling his direct conversations (about 5) with Mr. Thompson regarding the USDA'S intentional breach of the settlement contract. I believe the two affidavits after being presented to the Court may give Judge Allegra the necessary justification for ordering Mr. Thompson's submission to deposition.

Case 1:05-cv-00400-FMA

Document 63-3

Filed 12/06/2007

Page 3 of 3

Mr. Devin Wolak, Esquire U. S. Department of Justice November 6, 2007 Page 3

Without attempting to position you or to gain an advantage, if we are unable to agree to ADR, I intend to ask the Court to allow me to also depose Mr. Sam Snyder. Mr. Wolak, if I have omitted or misstated any issue regarding our discussions, please let me know in writing. With the desire to resolve this matter, I am

Sincerely yours, James W. Myart, Jr. James W. Myart, Jr. C: File Mr. Michael Stovall

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