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

Case 1:05-cv-00186-FMA

Document 61

Filed 03/21/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

LAVETTA ELK,

Case No. 05-186L Judge Francis M. Allegra

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR LEAVE TO PRESENT TESTIMONY BY WAY OF DEPOSITION Plaintiff, Lavetta Elk, by and through undersigned counsel, hereby files this Memorandum in Opposition to Motion for Leave to Present Testimony by Way of Deposition, and states as follows: Defendant seeks to present the testimony of Ms. Noritta High Hawk by way of deposition. The sole basis for Defendant seeking to read portions of Ms. Noritta High Hawk's deposition at trial is that it will "streamline the presentation of evidence." However, the reading of Ms. High Hawk's deposition testimony at trial would be contrary to the rules of evidence. Her deposition testimony excerpts are hearsay, 1 and Defendant has not even attempted to establish a basis for a hearsay exception in its Motion. Under Fed.R.Evid. 804 (b)(1), the deposition testimony of a witness is not hearsay "if the declarant is unavailable as a witness." There is nothing in the Defendant's Motion to show that Ms. High Hawk will be unavailable at trial. To the contrary, Plaintiff intends to call Ms. High Hawk at trial as a live witness. Her deposition testimony is therefore inadmissible hearsay, and may not be

1

There should be no question that the Federal Rules of Evidence apply in this Court. See Columbia First Bank, FSB v. United States, 58 Fed. Cl. 333 (2003) (applying Federal Rules of Evidence to motion in limine); Matthews v. Secretary of the Dep't of Health and Human Services, 18 Cl. Ct. 514 Herman & Mermelstein, P.A. www.hermanlaw.com

Case 1:05-cv-00186-FMA

Document 61

Filed 03/21/2008

Page 2 of 2

Case No. 05-186L
read at trial as part of Defendant's case. WHEREFORE, Plaintiff respectfully requests that Defendant's Motion for Leave to Present Testimony by Way of Deposition, with regard to the testimony of Noritta High Hawk, be denied. Respectfully submitted, HERMAN & MERMELSTEIN, P.A. Attorneys for Plaintiff 18205 Biscayne Boulevard Suite 2218 Miami, Florida 33160 Telephone (305) 931-2200 Facsimile: (305) 931-0877 www.hermanlaw.com

By:

/s/ Jeffrey M. Herman . JEFFREY M. HERMAN, ESQ. [email protected] STUART S. MERMELSTEIN, ESQ. [email protected] ADAM D. HOROWITZ, ESQ. [email protected]

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 21, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Steven D. Bryant, Esq. [email protected]

/s/ Jeffrey M. Herman

(1989); Fed.R.Evid. 1101(a). Herman & Mermelstein, P.A. www.hermanlaw.com -2-