Free Response - District Court of Federal Claims - federal

Case 1:02-cv-01622-LB

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Filed 06/22/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BLUEPORT COMPANY, LLC, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 02-1622C Judge Lawrence J. Block

DEFENDANT'S RESPONSES TO BLUEPORT'S PRETRIAL OBJECTIONS Pursuant to the Court's Order of December 22, 2005, defendant, the United States ("the government"), hereby sets forth its responses to Blueport's pretrial objections. See Plaintiff's Objections to Defendant's Witness and Exhibits List (filed June 8, 2006) ("Blueport's Objections").

Responses to Objections to Witnesses 1. James N. Keohane

In Paragraph 1 of Blueport's Objections, Blueport objects to the extent the government seeks to have its expert, Jim Keohane, testify regarding the "official employment functions of Mark Davenport or any other Air Force personnel." Blueport's Objections ¶ 1. Blueport's objection is moot. First, the government did not state that Mr. Keohane would offer direct or expert testimony relating to this issue in its Witness List. See Gov't Witness List ¶ 2. Second, to the limited extent that Mr. Keohane's expert report discusses Mr. Davenport's official employment functions, Mr. Davenport's employment functions were discussed to provide background for Mr. Keohane's opinion with respect to noninfringement and damages. See, generally, FRE 703 ("The facts or data in the

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particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert.").

2.

Glendon Hendricks

Blueport's remaining objections relate to the government's identification of Glendon Hendricks as a fact witness. See Gov't Witness List ¶ 1; Blueport's Objections ¶¶ 2-4. As an initial matter, the government will not call Mr. Hendricks as an expert witness, thus rendering most of Blueport's objections moot. See Blueport's Objections ¶¶ 2, 4. Note, however, that lay witnesses may provide testimony in the form of opinions or inferences if the testimony meets the requirements of Rule 701 of the Federal Rules of Evidence. Blueport, however, appears to object to Mr. Hendricks's expected testimony relating to Mr. Davenport's "employment functions" and the operation of "Blueport's AUMD software." Blueport's Objections ¶¶ 2, 3. Blueport's objections are not well-founded. During the time period of the alleged infringement, Mr. Hendricks was the Chief of the Information Systems Division of the Air Force Manpower and Innovation Agency ("AFMIA").1 As such, Mr. Hendricks has a great deal of personal experience in the Air Force's manpower career field and with the technology used in that field. Both parties listed Mr. Hendricks as a witness likely to have discoverable information in their Rule 26(a) disclosures. Mr. Hendricks has specific knowledge of the MDS database system and of the AUMD and MARS programs. Compare Blueport Objection ¶ 3. Furthermore, Mr. Hendricks worked in the Air

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In December 2003, AFMIA became the Air Force Manpower Agency ("AFMA"). -2-

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Force's manpower career field and personally knew Mr. Davenport. Compare Blueport Objection ¶ 2. Accordingly, his testimony is relevant and admissible with respect to both issues.

Responses to Objections to Exhibits Blueport did not object to any of the government's proposed exhibits in Blueport's Objections.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN J. FARGO Director

OF COUNSEL: CHUN-I CHIANG Air Force Legal Operations Agency Department of the Air Force

s/Scott Bolden SCOTT BOLDEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0262 Facsimile: (202) 307-0345 Attorneys for the United States

June 22, 2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 22, 2006 I electronically filed the foregoing DEFENDANT'S RESPONSES TO BLUEPORT'S PRETRIAL OBJECTIONS with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail address: [email protected] Upon information and belief, this email address corresponds to the following individual: Kurt M. Rylander KURT M. RYLANDER TRIAL AND PATENT ATTORNEY AT LAW PC 406 West 12th Street Vancouver, Washington 98660 (360) 750-9931 Attorney for Plaintiff

s/Scott Bolden SCOTT BOLDEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0262 Facsimile: (202) 307-0345