Free Response to Motion - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

Document 128

Filed 01/26/2006

Page 1 of 4

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

Electronically Filed: January 26, 2006 No. 99-550 L (into which has been consolidated No. 00-169L) Judge Emily C. Hewiit

DEFENDANT'S OPPOSITION, IN PART, TO PLAINTIFF'S MOTION TO PRESENT SUBSTANTIVE EVIDENCE BY DEPOSITION Defendant files this opposition, in part, to Plaintiff's motion to present substantive evidence by deposition, dated January 12, 2006. Plaintiff has selected portions of 23 deposition transcripts, and seeks to introduce those portions as evidence at trial pursuant to Rule 32(a)(3)(E) of the Rules of the Court of Federal Claims ("RCFC"). As discussed herein, the Court should deny Plaintiff's motion as to the deposition designations of witnesses Defendant expects to call as witnesses at trial. Specifically, the Court should deny Plaintiff's motion to present substantive evidence by deposition for the following witnesses: Rita Bratcher, Greg Chavarria, Judi Hill, Charles Hurlburt, Carole Revard, Paul Tyler, Margaret Williams and Pat Wren (collectively, the "witnesses"). Relying upon RCFC 32(a)(3)(E), Plaintiff seeks to file portions of the depositions of the witnesses into evidence. Plaintiff's motion seems to suggest that, according to RCFC 32(a)(3)(E), as long as Plaintiff does not call any of the Witnesses at trial and Plaintiff did not procure the unavailability of such witnesses, their depositions may be admitted into evidence. This is a flawed interpretation of this rule. RCFC 32(a)(3) provides for the use of depositions in court proceedings when it may be

Case 1:99-cv-00550-ECH

Document 128

Filed 01/26/2006

Page 2 of 4

difficult for a witness to testify at trial. See Persyn v. United States, 35 Fed. Cl. 708, 719, n. 7 (1996) (Rule 32(a)(3) was not applicable because it deals with instances in which it may be difficult for a witness to testify at trial); see also Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 645, n.6 (2005) (disregarding deposition testimony of witnesses who appeared at trial) (citing United States v. Int'l Bus. Machs. Corp., 90 F.R.D. 377, 382 (S.D.N.Y. 1981)). RCFC 32(a)(3)(E) specifically provides that the deposition of a witness may be used if the court finds "that the witness is at a greater distance than 100 miles from the place of trial." RCFC 32(a)(3)(E). Implicit in this rule is a strong preference for live testimony in court. See, e.g., Renda Marine, 66 Fed. Cl. at 645, n.6. While Defendant does not dispute that depositions may be used at trial if a witness is unavailable to testify in person, that is not the case here as to the witnesses listed above. See Renda Marine, 66 Fed. Cl. at 645, n.6; see also National Screw & Mfg. Co. v. Voi-Shan Indus., Inc., 347 F.2d 1 (9th Cir. 1965) (when a nonparty witness is available to testify, his or her deposition is admissible only for impeachment purposes). Indeed, Defendants intends to offer oral testimony from each of these witnesses at trial and will arrange for their availability. Therefore, and in light of the preference for live testimony at trial, the depositions of these witnesses should not be admitted. For the foregoing reasons, Defendant respectfully opposes Plaintiff's motion as to the deposition designations of witnesses Defendant expects to call as witnesses at trial. Respectfully submitted, SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

-2-

Case 1:99-cv-00550-ECH

Document 128

Filed 01/26/2006

Page 3 of 4

s/ Brett D. Burton BRETT D. BURTON 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 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) 208-4218 Fax: (202) 208-3490 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Services -3-

Case 1:99-cv-00550-ECH

Document 128

Filed 01/26/2006

Page 4 of 4

U.S. Department of the Treasury 401 14th Street, S.W. Room 552A Washington, D.C. 20227 Telephone: (202) 874-6877 Fax: (202) 874-6627

-4-