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

Case 1:99-cv-00550-ECH

Document 204

Filed 03/20/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE OSAGE TRIBE OF INDIANS OF OKLAHOMA, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Electronically Filed: March 20, 2006 Nos. 99-550L (into which has been consolidated No. 00-169 L) Judge Emily C. Hewitt

DEFENDANT'S MOTION FOR LEAVE TO FILE SECOND SUPPLEMENT TO DEFENDANT'S REVISED EXHIBIT LIST Defendant hereby moves this Court for leave to file the attached second supplement to Defendant's revised exhibit list. The second supplement that Defendant seeks to make to its revised exhibit list consists of 28 new documents. These documents are essential to Defendant's case and will not unduly prejudice Plaintiff. The documents essentially consist of Defendant's revised expert reports, documents from the collection of documents that Ronnie Martin produced for his deposition on March 14, and documents that relate to the issue of alleged document destruction that were produced at the depositions of Melissa Currey and Julie Kelley during the week of March 6, 2006. Defendant notes, however, the parties have scheduled a number of expert depositions this week. Defendant reserves the right to further supplement its Revised Exhibit List based on documents produced at these depositions in response to subpoenas. Further, Defendant expects to file an opposition to Plaintiff's motion for leave to supplement its revised exhibit list with three documents1/ relating to the Social Security Trust Funds, Railroad Retirement Account, and Civil

1/

The three documents are the Social Security Administration Actuarial Note Number 142, "Social Security Trust Fund Investment Policies and Practices," January 1999; December 13, -1-

Case 1:99-cv-00550-ECH

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Service Retirement Fund. Defendant reserves the right to supplement its Revised Exhibit List if the Court grants Plaintiff's motion for leave to file these documents and decides to proceed with considering whether the Social Security Trust Funds, Railroad Retirement Account, and Civil Service Retirement Fund are analogous to the Osage trust fund. In connection with the testimony of Julie Kelley, Defendant expects to offer excerpts from 16 Bureau of Indian Affairs Manual ("BIAM") 4600, Release 1 (July 12, 1989) and 15 BIAM Supp. No. 3, App. 2, Release 1 (February 11, 1977), which set forth requirements and official policy for the filing and disposition of records.2/ These exhibits will be offered in rebuttal to statements made by witnesses for Plaintiff alleging destruction of documents. In connection with the testimony of Melissa Currey and Julie Kelley, Defendant expects to offer several exhibits pertaining to the receipt, transmittal, retention, and disposition of documents at the Osage Agency. This includes File Maintenance and Disposition Plans, Record Transmittal Receipts, and a memo discussing the filing system at the Osage Agency. Defendant also expects to offer the revised expert reports of Ronnie Martin, Charles Lundelius, and Gregory Chavarria, in connection with their testimony at trial, as well as documents

1985 Memorandum from Comptroller General to Chairman, House Subcommittee on Commerce, Transportation, and Tourism and Chairman, House Subcommittee on Social Security re: Redemption of Railroad Retirement Account Investments; General Accounting Office Report to Chairman, House Committee on Post Office and Civil Service, "Civil Service Fund: Improved Controls Needed Over Investments," May 1987.
2/

Note, in its March 7, 2006, Order, the Court stated that "Defendant may introduce additional exhibits not to exceed a total of 150 pages in length from the documents identified in Defendant's Motion for Leave to File." Defendant identified 15 and 16 BIAM in Defendant's Motion for Leave to File. In order to limit the number of supplements to its revised exhibit list, Defendant has included the 15 and 16 BIAM excerpts as part of the attached second supplement to Defendant's revised witness list. -2-

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these experts relied upon in conducting their analysis and forming their expert opinions. These revised expert reports reflect the Court's definition of Tranche One in the Court's February 22, 2006, Order, and were produced to Plaintiff in accordance with the schedule set out in the Court's February 28, 2006, Order. Further, as explained during a telephonic conference on February 27, 2006, the Revised Expert Report of Ronnie Martin contains additional analysis concerning the receipt of royalty payments at the Osage Agency. The Court should grant this motion and permit Defendant to supplement its revised exhibit list with the attached documents. Defendant was not able to include these documents on its revised witness list because they consist of recently revised expert reports and documents produced at depositions during the week of March 6, 2006 and on March 14, 2006. Further, allowing Defendant to supplement its revised exhibit list will not unduly prejudice Plaintiff in this case. Per the Court's February 28, 2006 Order, Defendant provided Plaintiff with copies of the revised expert reports and provided Plaintiff with copies of the documents related to the alleged destruction of documents during the week of March 6, 2006, at the depositions of Melissa Currey and Julie Kelley. For the following reasons, Defendant respectfully moves for leave to file the second supplement to Defendant's revised exhibit list. Respectfully submitted on this 20th day of March, 2006,

SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

s/ Brett D. Burton BRETT D. BURTON -3-

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United Sates Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Counsel of Record for Defendant

s/ Martin J. LaLonde MARTIN J. LALONDE KEVIN S. WEBB United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0247 Fax: (202) 353-2021 Attorneys for Defendant

OF COUNSEL: Elisabeth Brandon Brenda Riel Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 208-3490 Fax: (202) 219-0559

Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Service U.S. Department of the Treasury 401 14th Street, S.W. -4-

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Washington, D.C. 20227 Telephone: (202) 874-6877 Fax: (202) 874-6627

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