Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:99-cv-00194-EGB

Document 124

Filed 10/13/2004

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARKETING AND MANAGEMENT INFORMATION, INC. , Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 99-194C (Judge Bruggink)

DEFENDANT'S MOTION TO ADMIT DEPOSITION TESTIMONY OF UNAVAILABLE WITNESS Pursuant to Rule 32(a)(3)(B) and paragraph 15(b) of Appendix A of the Rules of the Court of Federal Claims (RCFC), defendant, the United States, respectfully requests that the Court admit designated portions of the deposition testimony of Patrick Flannery, taken on July 9, 1997, in connection with Management Science Associates, Inc. v. Marketing & Management Information, Inc., GD No. 96-10189, in the Court of Common Pleas of Allegheny County, Pennsylvania. In his testimony, Mr. Flannery recounts his employment history while at Marketing and Management Information, Inc. (MMI) during the relevant time period and discusses the business ventures in which he engaged in the period prior to 1995. Mr. Flannery served as president of MMI from May 1993 through November 1996 and as president of an affiliate of MMI, Data Management Services, from November 1996 through May 1997. In the course of the testimony which we designate below, Mr. Flannery discusses his resume, which is attached to the deposition transcript as Exhibit 1 (DX 585/82-85), and his business ventures, in an exhibit which is attached as Exhibit 5 (DX 585/85). In this request, we seek not only designate the passages identified below, but also Exhibits 1 and 5 to the deposition.

Case 1:99-cv-00194-EGB

Document 124

Filed 10/13/2004

Page 2 of 3

Although Mr. Flannery played a significant role in the operation of MMI during the relevant period of time, he is unavailable to testify at trial. MMI stated in responses to interrogatories that it did not know where Mr. Flannery was located and defendant itself was unable to locate Mr. Flannery. We request the Court to admit the following passages of Mr. Flannery's deposition designated below and found at DX 585: 4:1-9, 6:2-8:9, 9:1-11:2, 13:10-14:3, 173:1-204:7 (DX 585/4, DX 585/6-8, DX 585/9-11, DX 585/13-14, DX 585/19-50), as well as DX 585/82-85 and DX 585/86-91. For the foregoing reasons, we respectfully request that the Court grant our motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General /s/ David M. Cohen DAVID M. COHEN Director OF COUNSEL: THOMAS D. RATHGEB ELLIOTT CLARK Office of General Counsel Defense Commissary Agency Fort Lee, VA 23801-1800 /s/ Sheryl Floyd SHERYL FLOYD Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0282 Facsimile: (202) 514-8624 Attorneys for Defendant OCTOBER 13, 2004 -2-

Case 1:99-cv-00194-EGB

Document 124

Filed 10/13/2004

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on 13th day of OCTOBER, 2004, a copy of the "DEFENDANT'S MOTION TO ADMIT DEPOSITION TESTIMONY OF UNAVAILABLE WITNESS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Sheryl Floyd