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

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 1 of 6

U.S. Department of Justice Civil Division JED:DAB:DAWolak 154-05-400 Telephone: (202) 616-0170 Facsimile: (202) 514-8624
Washington, DC 20530

August 20, 2007

VIA ELECTRONIC MAIL

Mr. James W. Myart, Jr. James W. Myart, Jr., P.C. The Preston House 1104 Denver Boulevard Suite 300 San Antonio, Texas 78210

Re:

Michael W. Stovall v. United States, CFC No. 05-400

Dear Mr. Myart: I am writing to address the issues that have arisen with respect to your request for the deposition of Mr. Clyde Thompson, the current Deputy Administrator for Operations and Management of Rural Development, an agency of the United States Department of Agriculture. As we have discussed on the telephone many times, and as you indicated in the draft notice of deposition for Mr. Thompson that you sent to me via e-mail on August 10, 2007,1 you believe that Mr. Thompson will provide testimony concerning his involvement in negotiations to settle your client's administrative claim that preceded this lawsuit. You have also told me that Mr. Thompson once instructed your client to fire you, and that this statement was made in the context of negotiations over this case or the case of Williams v. United States, Fed. Cl. No. 06124C. The subjects you have identified for Mr. Thompson's testimony are objectionable, and do not form a proper basis for taking his deposition. First, assuming Mr. Thompson did engage in settlement discussions concerning this case, the substance of those discussions are inadmissible

In subsequent conversations, you told me that you have properly served these notices, as required by the Rules of the Court of Federal Claims. As I have informed you, I still have not received these notices. Until I do, or you provide me with some proof of service, the Government has no obligation to produce any of these witnesses.

1

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 2 of 6

at trial under Federal Rule of Evidence 408. Also, the likelihood that Mr. Thompson's testimony upon that subject will lead to other discoverable information is extremely low, as this lawsuit involves allegations that the Government breached its contract with your client -- and that the breach allegedly occurred long before your client filed his administrative complaint concerning the breach. Also, whether Mr. Thompson instructed your client to fire you or not is completely irrelevant to this case. Finally, as the attached declaration demonstrates, and as I have repeatedly informed you in our prior conversations, Mr. Thompson had no involvement with the execution or implementation of the Stovall settlement agreement. Despite all of this, you have insisted that Mr. Thompson be made available for his deposition, and you informed me that during his alleged negotiations to resolve this case at the administrative stage, Mr. Thompson had sent you "over twenty letters" concerning the case. I asked you to provide me with those letters, and you promised to include them in your client's document production. Based upon this representation, we agreed to make Mr. Thompson available for his deposition, and scheduled it for the afternoon of August 22, 2007. We informed you that Mr. Thompson was going to be out of town the previous weekend through the morning of the 22d, and that he was returning to Washington D.C. for the sole purpose of being deposed. The promised letters were not included in your client's document production, so I telephoned you and asked again that you provide them so that Mr. Thompson could be prepared for his deposition. You then informed me that the letters were actually only about a dozen in number, and they were all from you to Mr. Thompson, and Mr. Thompson had never written back. I informed you that these letters were also not included in your client's document production, and that I would appreciate it if you would send me copies for Mr. Thompson to review. Last week, after another period where I did not receive any letters from you, I called again to request the letters. On Friday, you informed me that the only letters that you intended to question Mr. Thompson about were the two from you to him that were already contained in your client's document production. You also informed me that you were not going to yield in your demand that Mr. Thompson be produced for deposition, and that you intended to interrogate him about why he instructed Mr. Stovall to fire you. Despite the fact that Mr. Thompson knows nothing about this case and you apparently have nothing with which to refresh his memory, we have, until this point, been willing to make him available for deposition. However, due to the recent schedule conflict caused by your late request to depose Mr. Clarence Snyder (who is only available on August 22), it was necessary to reschedule Mr. Thompson's deposition. We discussed this matter on the telephone on Friday, August 17, 2007. You requested that Mr. Thompson return from his vacation early to be deposed on August 21, or that we make him available after the other depositions in this case, on Friday, August 23. I told you that I would ask about these dates, even though I had previously informed you that he was already fully scheduled for those dates. I suggested that we could more easily agree upon any date during the week of August 27, as I knew that Mr. Thompson's -2-

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 3 of 6

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 4 of 6

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 5 of 6

Case 1:05-cv-00400-FMA

Document 49-6

Filed 08/22/2007

Page 6 of 6