Free Response - District Court of Federal Claims - federal

Case 1:99-cv-00898-CCM

Document 170

Filed 09/08/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PALAFOX STREET ASSOCIATES, L.P., et. al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 99-898C (Judge C. Miller)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO AMENDED THEIR EXHIBIT LIST Defendant respectfully responds to Palafox Street Associates, L.P., et. al.s ("Palafox") September 8, 2006 motion to amend its exhibit list. Palafox seeks to amend its exhibit list to include exhibits P218-P294, upon the basis that they were omitted initially in Palafox's August 18, 2006 filing because of a clerical error. Appendix A provides that, absent disclosure to opposing counsel at the meeting of counsel, exhibits will not be admitted "absence . . . the showing of a compelling reason for the failure." Whether Palafox's failure here constitutes a "a compelling reason for the failure" is a matter committed to the discretion of the Court. The Government will be prejudiced from the extremely untimely amendment, both because the Government prepared its case upon the basis of the exhibits actually listed and because this amendment is sought on the eve of trial.

Case 1:99-cv-00898-CCM

Document 170

Filed 09/08/2006

Page 2 of 3

Palafox further seeks to amended its exhibit list to include two related documents: P295, a 2001 audit report, and P296, commentss that Palafox states were apparently prepared by the auditor. As a basis for this amendment, Palafox states that "[t]hese documents have been added for identification purposes because, based on communications that have taken place with the government since the filing of the initial exhibit list, Plaintiffs may to wish use these documents at trial to rebut, support or otherwise address certain issues related to Plaintiffs' damages claims." The "communications" to which Palafox refers as a basis for its motion constitute our objection to the admission at trial of consolidated exhibit No. 1 for the truth of the matters asserted therein. Appendix 1-7. In part, we objected to the admission of itemizations of the claims for the truth of the matters asserted therein upon the basis that these financial summaries do not comply with the requirements for admission of summaries into evidence pursuant to Rule 1006 and that Palafox had not provided the underlying financial data Our timely and proper objections to Palafox's failure to comply to Rule 1006 does not constitute a proper basis upon which to allow Palafox now to revise its exhibit list on the eve of trial. The Government does not oppose Palafox's motion to amend its exhibit list to include exhibits P297-P340, because these exhibits were only recently provided to Palafox in discovery.

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Case 1:99-cv-00898-CCM

Document 170

Filed 09/08/2006

Page 3 of 3

For the reasons set forth above, the Court should deny Palafox's motion to amend its exhibit list to include exhibits P295 and P296, and the Government does not oppose Palafox's motion to amend its exhibit list to include exhibits P297-P340. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

TODD M. HUGHES Assistant Director

OF COUNSEL: THOMAS HAWKINS Assistant General Counsel General Services Administration 1800 F St., NW Room 4131 Washington, D.C. 20405

/s/ John S. Groat JOHN S. GROAT Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202)616-8260/514-4325 Facsimile: (202)514-7965 Attorneys for Defendant

September 8, 2006

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