Free Motion to Summon Third Person - District Court of Federal Claims - federal

Case 1:02-cv-01622-LB

Document 79

Filed 06/30/2006

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BLUEPORT COMPANY LLC, Plaintiff, -vTHE UNITED STATES, Defendant. PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES Plaintiff, Blueport Company, LLC, by its attorneys, hereby moves the Court for an Order pursuant to Rule 45 of the Court of Federal Claims and 28 U.S.C. § 2521 authorizing service of subpoenas on trial witnesses who are located more than 100 miles from the trial location. Defendant does not oppose this motion. Rule 45 of the Court of Federal Claims provides that trial witnesses located more than 100 miles from the site of the trial cannot be served absent an Order from the Court authorizing such service. Rule 45(b)(2) provides, in pertinent part: ...a subpoena may be served at any place that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena, but the court upon proper application and good cause shown may authorize the service of a subpoena at any other place. See also 28 U.S.C. § 2521.The Order must accompany the service of subpoena. See Form 6, Subpoena, RULES OF THE COURT OF FEDERAL CLAIMS. Each of the witnesses resides outside of the District of Oregon, at a distance in excess of one hundred miles from Portland, Oregon, where the trials is being conducted. Case No. 02-1622C Judge Lawrence J. Block

PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES--1

Case 1:02-cv-01622-LB

Document 79

Filed 06/30/2006

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Peggy Gast AFMIA United States Air Force Randolph AFB, TX 78150 [home address unknown] Lieutenant Colonel William E. Manning, Jr. United States Air Force USSTRATCOM/J006 Offutt AFB, NE 68113 [home address unknown] Anthony Dant 2612 Star Light Ln Schertz, TX 78150 Theodore I. Meyers, and/or custodian of records Science Applications International Corp. (SAIC) 4242 Woodcock, Suite 150 San Antonio, TX 78228 [home address unknown] Stephen W. Hall, and/or custodian of records Science Applications International Corp.(SAIC) 4242 Woodcock, Suite 150 San Antonio, TX 78228 [home address unknown]

Circumstances of infringement and circumvention. Including, to provide foundation for admission of SAIC documents created for AFMIA. See FRE 803(6); see also FRE 801(d)(2)(A), (E), 807. Scope of employment; use of government time, materials, resources.

Scope of employment; use of government time, materials, resources. MARS software and contract, and attendant circumstances. Specifically, to provide foundation for admission of SAIC documents created for AFMIA. See FRE 803(6); see also FRE 801(d)(2)(A), (E), 807. MARS software and contract, and attendant circumstances. Specifically, to provide foundation for admission of SAIC documents created for AFMIA. See FRE 803(6); see also FRE 801(d)(2)(A), (E), 807.

A.

Need Plaintiff has a substantial need for the testimony of the witnesses listed below for

the reasons described.

Each of the witnesses is believed by the plaintiff to have

evidence material to the issues of this cause. The testimony of these witnesses is necessary to establish the alleged violations of the charges and allegations contained in the Amended Complaint filed in the above case. Ms. Gast is a primary material witness in this case related to the Government's acts of infringement by and through SAIC.

PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES--2

Case 1:02-cv-01622-LB

Document 79

Filed 06/30/2006

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Ms. Gast is also expected to provide foundation for the SAIC exhibits. Plaintiff frankly did not anticipate the Government objecting to the SAIC exhibits, as they are all documents that SAIC provided to the Government as part of the deliverables on the subject MARS software recreation contract. The documents are material and necessary to the case. Plaintiff contends the documents tend to establish direct, identical, copying of the AUMD programs by the Government through SAIC in the MARS programs. In addition to Ms. Gast, the SAIC personnel are needed to provide the foundation for the SAIC documents. Plaintiff awaits to hear from SAIC's counsel, Andy Petrakes, Esq., regarding the availability of the SAIC personnel. Lt. Col. Manning and Mr. Dant are material and necessary to Plaintiff's case and will testify to the scope of employment and non-use of government time, materials, and resources by Mr. Davenport. B. Avoidance of Hardship Plaintiff assures the Court that witnesses to whom these subpoenas are directed will be reasonably compensated. Plaintiff intends to reimburse the witnesses of the travel costs and lodging. Plaintiff intends to do whatever is necessary and proper to avoid undue hardship on the witnesses, and believes that there will be no undue hardship. Moreover, the Government has informed Plaintiff that the Government confirmed that the governmental employees sought to be called by Plaintiff, Lt. Col. Manning, Mr. Dant, Ms. Gast, have no personal conflicts which would preclude them from appearing and testifying.

PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES--3

Case 1:02-cv-01622-LB

Document 79

Filed 06/30/2006

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Further, regarding the SAIC personnel, Government counsel has indicated a willingness to have the foundational testimony provided by phone, if travel is not a realistic opportunity. WHEREFORE, the Court should grant this motion and issue an Order authorizing service on these individuals. DATED THIS June 30, 2006, Respectfully submitted, RYLANDER & ASSOCIATES PC /s/ Kurt M. Rylander__ ________ KURT M. RYLANDER, Attorney at Law 406 West 12th Street 206 Vancouver, Washington 98660 Tel: (360) 750-9931 Fax: (360) 750-9953 E-mail: [email protected] Of Attorneys for Plaintiff

PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES--4

Case 1:02-cv-01622-LB

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Filed 06/30/2006

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CERTIFICATE OF SERVICE I HEREBY CERTIFY under penalty of perjury of the laws of the Federal Court that on the date signed below I served a copy of the document to which this certificate is attached by electronic filing with the US Court of Federal Claims which filing serves this document upon attorneys of record for Defendant, Scott Bolden, U.S. Department of Justice, Civil Division-Commercial Litigation Branch, Washington, D.C. [email protected]. 20530,

DATED THIS June 30, 2006

/s/ Kurt M. Rylander KURT M. RYLANDER, (360) 750-9931 Of Attorneys for Plaintiff RYLANDER & ASSOCIATES PC 406 West 12th Street Vancouver, Washington 98660 Tel: (360) 750-9931 Fax: (360) 750-9953 E-mail: [email protected]

PLAINTIFF'S UNOPPOSED MOTION FOR ORDER AUTHORIZING SERVICE OF SUBPOENAS ON WITNESSES--5