Free Response - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM Document 336-2 Filed 04/28/2005 Page PLAINTIFF'S RESPONSES TO DEFENDANT'S OBJECTIONS 1 of 60 TO EXHIBITS ON PLAINTIFF'S FINAL EXHIBIT LIST Precision Pine and Timber, Inc. v. United States, No. 98-720 C PX NO. 1 DESCRIPTION DATE DEFENDANT'S OBJECTIONS PLAINTIFF'S RESPONSES

Appraisal Summary for the Hay timber sale with attached: Data Sheet for Appraisal Summary (Form R32400-17); Report of Timber Sale - Convertible and Nonconvertible Products

01/10/1989 Relevance ­ Precision Pine was not the high bidder on the Hay contract.

The fact that Precision Pine was not the high bidder for this timber sale contract does not affect the relevance of this document in any way. There is no question that prior to the suspension Precision Pine was the holder of the contract. There is also no question that as indicated in the document the Forest Service was indicating an anticipated mill overrun factor of 1.3390 for Ponderosa Pine which is considerably more in line with the 1.25 overrun factor that Precision Pine has indicated it would have achieved than the overrun factor proffered by defendant's putative expert Mr. Adkins. NA The fact that Precision Pine was not the high bidder for this timber sale contract does not affect the relevance of this document in any way. There is no question that prior to the suspension Precision Pine was the holder of the contract. There is also no question that as indicated in the document the Forest Service was indicating an anticipated mill overrun factor of 1.2767 for Ponderosa Pine which is considerably more in line with the 1.25 overrun factor that Precision Pine has indicated it would have achieved than the overrun factor proffered by defendant's putative expert Mr. Adkins. NA It is unclear whether the Government has an objection or is simply noting that multiple documents were combined into a single exhibit, because the Government points to no rule that prohibits combining related and relevant documents into a single exhibit. Accordingly, Plaintiff cannot respond unless the Government can point to such a rule.

2 3

Appraisal Summary for the Jersey Horse timber 10/19/1993 No objection. sale Appraisal Summary for the O.D. Ridge timber 10/18/1991 Relevance ­ Precision Pine sale with attached: was not the high bidder on Data Sheet for Appraisal Summary (Form R3the O.D. Ridge contract. 2400-17)

4 5

Appraisal Summary for the Brookbank timber 03/06/1995 No objection. sale with attached: Converted Scribner Appraisal Summary Converted Scribner Appraisal Summary for the 06/16/1995 Exhibit contains multiple Kettle timber sale with attached: documents. Converted Scribner Report of Timber Sale convertible and nonconvertible products

Case 1:98-cv-00720-GWM 6 Appraisal Summary for the U-Bar timber sale with attached: T.E.A. Appraisal Bulletin No. 08 CY 92 2nd (Aug) Appraisal Summary for the Mud timber sale

Document 336-2

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Page 2 of 60 NA

08/24/1992 No objection.

7 8 9

07/25/1994 No objection.

NA NA NA

Appraisal Summary for the Monument timber 08/22/1994 No objection. sale Appraisal Summary for the Salt timber sale with 12/12/1993 No objection. attached: Converted Scribner Appraisal Summary Appraisal Summary for the Manaco timber sale 12/04/1994 Exhibit is comprised of with attached: multiple documents. Report of Timber Sale - Convertible and Nonconvertible Products; Converted Scribner Appraisal Summary; Converted Scribner Report of Timber Sale Convertible and Nonconvertible Products Appraisal Summary for the Saginaw-Kennedy 08/02/1994 No objection. timber sale Appraisal Summary for the St. Joe timber sale with attached: Data Sheet for Appraisal Summary (Form R32400-17) Appraisal Summary for the Brann timber sale with attached: Converted Scribner Appraisal Summary Appraisal Summary for the Hutch-Boondock timber sale with attached: Converted Scribner Appraisal Summary 10/30/1991 No objection.

10

It is unclear whether the Government has an objection or is simply noting that multiple documents were combined into a single exhibit, because the Government points to no rule that prohibits combining related and relevant documents into a single exhibit. Accordingly, Plaintiff cannot respond unless the Government can point to such a rule.

11 12

NA NA

13

07/28/1994 No objection.

NA

14

05/19/1994 No objection.

NA

2

Case 1:98-cv-00720-GWM 15 Appraisal Summary for the Outlaw timber sale

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09/25/1990 Relevance ­ the Outlaw timber sale is not at issue in this action.

This document is relevant because it demonstrates a belief by the Forest Service as to the achievability of a mill overrun factor of 1.3293 on Ponderosa Pine sawlogs larger than the sawlogs on the breached sales. This document is relevant because it demonstrates a belief by the Forest Service as to the achievability of a mill overrun factor of 1.2772 on Ponderosa Pine sawlogs larger than the sawlogs on the breached sales. This document is relevant because it demonstrates a belief by the Forest Service as to the achievability of a mill overrun factor of 1.3138 on Ponderosa Pine sawlogs larger than the sawlogs on the breached sales. NA

16

Pre-Sale Report and Appraisal Summary for the 08/20/1993 Relevance ­ the Barber Barber timber sale timber sale is not at issue in this action. Appraisal Summary for the Campbell timber 08/30/1993 Relevance ­ the Campbell sale timber sale is not at issue in this action. Winslow Sawmill Production Reports: yearly reports: 1/94-12/94, 4/93-3/94, 4/943/95, 4/95-3/96, 4/96-3/97 quarterly report: Apr, May, June 95 3/94, 4/94, 5/94, 6/94, 7/94, 8/94, 9/94, 10/94, 11/94 12/94 1/95, 2/95, 3/95, 4/95, 5/95, 6/95, 7/95, 8/95, 8/95 (fir cut), 9/95, 10/95 11/95, 12/95 1/96, 2/96, 3/96, 4/96, 5/96, 6/96, 7/96, 8/96, 9/96, 10/96, 11/96, 12/96 1/97, 2/97, 3/97, 4/97, 5/97, 6/97, 7/97, 8/97 Heber Sawmill Production Reports: yearly reports: 4/95-3/96, 4/98-3/99 1/94, 2/94, 3/94, 4/94, 6/94, 7/94, 8/94, 9/94, 10/94, 11/94, 12/94 1/95, 2/95, 4/95, 5/95, 6/95, 7/95, 8/95, 9/95, 11/95, 12/95 1/96, 2/96, 3/96, 4/96, 5/96, 6/96 10/97, 11/97, 12/97 1/98, 2/98, 3/98, 4/98, 5/98, 6/98, 7/98, 8/98, 9/98, 10/98, 11/98, 12/98 1/99, 6/99, 8/99, 9/99, 10/99, 11/99, 12/99 1/00 No objection. However, monthly production reports from 9/97 through the mill's closure in 9/98 are omitted.

17

18

19

Heber sawmill production records are incomplete. Monthly production reports for 3/95, 10/95, 2/99-5/99 and 7/99 are omitted. Monthly production reports appear to come from two sources, as reports from 10/97 to 12/98 have written entries, whereas all other monthly reports are typed. Monthly reports for 10/97, 3/98, 7/98, 8/98 and 12/19 provide no data. The year for 3

It is unclear whether the Government has an objection as to admissibility, or is arguing the weight and sufficiency of the documents. Accordingly, Plaintiff has difficulty responding. However, if the Government is challenging the foundation of the exhibits, Plaintiff responds that the identity and authenticity of the production reports, including any handwritten corrections or notations, can be established by the testimony of Precision Pine employees at trial. As for Defendant's specific observations, Plaintiff responds as follows: Some of the monthly production reports that are missing or blank indicate that the mill did not operate at the time, and thus no report has made or no data was recorded. As for the fact that some reports are typed and others handwritten, that fact does

Case 1:98-cv-00720-GWM

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monthly reports ostensibly for 7/97, 8/94, 10/94 and 11/94 has been altered by hand. Exhibit supposedly contains, but is missing the 4/98-3/99 yearly reports and monthly reports from 1/94 to 4/94.

not affect admissibility, because proper foundation can be laid for both types. Apparently, Precision simply did not have or use computer systems at certain times. As for the 4/98-3/99 yearly report, it is included as the second page of the exhibit. The 1/94 monthly report is the third page -- the year is noted after the handwritten line beginning "Week 1." The 4/94 monthly report is the eighth page of the exhibit. It is unclear how the government overlooked these reports. However, Plaintiff intends to provide a copy of all of its exhibits to the Government in addition to the copies it provided at the early meeting of counsel. It is unclear whether the Government has an objection as to admissibility, or is arguing the weight and sufficiency of the documents. Accordingly, Plaintiff has difficulty responding. However, if the Government is challenging the foundation of the exhibits, Plaintiff responds that the identity and authenticity of the production reports, including any handwritten correction or notations, can be established by the testimony of Precision Pine employees at trial. As for Defendant's specific observations, Plaintiff responds as follows: Some of the monthly production reports that are missing or blank indicate that the mill did not operate at the time, and thus no report has made or no data was recorded. As for the fact that some reports are typed and others handwritten, that fact does not affect admissibility, because proper foundation can be laid for both types. Apparently, Precision simply did not have or use computer systems at certain times. NA

20

Eagar Sawmill Production Reports: yearly reports: 4/95-3/96 1/94, 2/94, 7/94, 8/94, 9/94, 10/94, 11/94 12/94 1/95, 2/95, 3/95, 4/95, 5/95, 6/95, 7/95, 8/95, 9/95, 10/95, 11/95, 12/95 2/97, 3/97, 4/97, 5/97, 6/97, 7/97

Eagar sawmill production records are incomplete. Monthly production reports for 3/94-6/94, 1/96-1/97 and after 7/97 are omitted. Monthly production reports appear to come from two sources, as reports for 1/94 and 2/94 have handwritten entries, whereas all other monthly reports are typed. The monthly reports are typed. The monthly production report ostensibly for 2/95 has an altered date of unknown origin. 07/13/1993 No objection.

21

Purchaser's Certification of Timber Domestically Processed and Exported for CY 1992 (Saginaw-Kennedy)

22

Purchaser's Certification of Timber 05/15/198? Document is illegible. Domestically Processed and Exported (Contract #000642)

The document is offered for the proposition that the Forest Service required Precision to complete and file this form, and that Precision did so. The document is sufficiently legible for that purpose. Alternatively, any foundational deficiencies presented by the legibility of the document can be remedied by direct testimony at trial. 4

Case 1:98-cv-00720-GWM 23 Purchaser's Certification of Timber 12/??/?? Domestically Processed and Exported (Contract #000790)

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Document date is cut off.

The document is offered for the proposition that the Forest Service required Precision to complete and file this form, and that Precision did so. The document is sufficiently legible for that purpose. Alternatively, any foundational deficiencies presented by the legibility of the document can be remedied by direct testimony at trial. NA

24

Purchaser's Certification of Timber Domestically Processed and Exported for CY 1989 (Horseshoe Salvage) Purchaser's Certification of Timber Domestically Processed and Exported for CY 1992 (Merritt Blowdown) Letter from Leaverton to Precision Pine re: Forest Service needs "Certification of Disposition of Timber" before Contract #001228 (Hidden) can be closed; also stating cash balance remaining on bond for sale.

11/07/1990 No objection.

25

07/09/1993 Document contains handwriting of unknown origin.

The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees.

26

01/03/1995 Relevance: the Hidden This document is relevant because it demonstrates the Forest Service's interest in, contract is not at issue in this at least as early as 1995, and knowledge of, where timber removed pursuant to its action. timber sales contract was being manufactured into lumber. Based on the Forest Service's interest and knowledge as to whether bidders like Precision Pine were manufacturers of timber into lumber, the Forest Service simply cannot credibly assert that the impact of a long term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable. undated Relevance: the Hidden contract is not at issue in this action; second page appears to be a separate document. Precision Pine's records indicate that both pages of this exhibit were sent to the Forest Service, in the person of Mr. Leaverton, at the same time. Page two of the document, a January 1, 1994 certification of where Precision Pine processed timber from the Hidden timber sale, is relevant to show that contrary to defendant's arguments, the Forest Service had both knowledge and substantial interest in what its commercial timber sales customers did with the timber harvested pursuant to timber sale contracts. NA

27

Letter from Porter to Leaverton re: transferring balance, with attached: Purchaser's Certification of Timber from National Forest Sale for Contract #001228.

28 29

Precision Pine Production & Sales Report Precision Pine Production & Sales Report

9/94-2/95 01/1995

No objection.

Handwritten notes of The authorship and other foundational elements of the handwritten portions of unknown origin; otherwise no the document can be established at trial through the direct testimony of Precision objection. Pine employees. No objection. 5 NA

30

Precision Pine Production & Sales Report

02/1995

Case 1:98-cv-00720-GWM 31 32 33 34 Portions of Kaibab Forest Plan: cover, pp. 3-5, 16, 20-23, 240 Portions of Apache-Sitgreaves Forest Plans: cover, pp: 11-12, 283 Portions of Coconino Forest Plan: cover, pp: 7, 17-18, 21 (as amended 12/87), 28-32, 263 Portions of Wiggins Analysis Area Environmental Assessment: pages: i, 15

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Document is incomplete. Document is incomplete. Document is incomplete. 02/03/1998 Document is incomplete.

It is unclear whether the Government has an objection or is simply noting that only the relevant portions of the document were included as an exhibit. Under the Federal Rules of Evidence, there is nothing objectionable to introducing only the relevant portions of a document, and the Government does not point to any rule providing such an objection. Accordingly, Plaintiff has some difficulty responding. However, if the Government is alluding to the "completeness doctrine" enshrined in FRE 106, Plaintiff would respond simply by noting that FRE 106 does not require the use of all or none of the document. United States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989). Indeed, introducing the entirety of a voluminous document that contains only a few pages of probative evidence might run afoul of FRE 402 as irrelevant and/or 403 as unnecessarily cumulative. FRE 106 simply allows an opponent to have other portions of a document "which ought in fairness to be considered contemporaneously" with the portion that the proponent is introducing, be introduced at the same time. In this case, Plaintiff is simply introducing the relevant portions of the document, and the Government has not identified any portions of the document which, in the Government's view, "ought in fairness to be considered contemporaneously with" Plaintiff's exhibit. Accordingly, there is no basis for the Court to consider an objection, because the Government has not asserted that any omitted pages must be admitted in Plaintiff's exhibits under the completeness doctrine. Also, since the complete document is in the Government's possession, the Government can present any additional pages from the document as an exhibit during its case-in-chief to further define, clarify, or place in context the evidence in the pages Plaintiff is offering, and Government has not demonstrated why such a remedy would be inadequate. See United States v. Spearman, 186 F.3d 743, 55 (6th Cir. 1999) (Declining to require proponent to include entirety of videotape during its case-in-chief, because opponent could simply play the other portions of the tape during its case); Wright & Graham, 21 Federal Practice and Procedure, § 5077 (2004).

35

SBA Form 723 (1-76): Small Business 03/15/1993 No objection. Certification for Duran Multiproduct timber sale

NA

6

Case 1:98-cv-00720-GWM 36

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Letter from Jill Leonard, District Ranger, North 03/07/1997 Relevance. Kaibab District to Precision Pine & Timber, Attn: John Smith; re: planned sales in the district for CY's '97 - '00

This document is relevant for several independent reasons. First, it demonstrates the Forest Service's knowledge of what was actually happening in Arizona in the mid '90's, i.e., that as timber sale offerings declined, several large mills had closed and in their place mills (owned by Precision Pine) with a reduced capacity had moved in. Second, it shows the continuing desire of the Forest Service to be responsive to the needs of the sawmills who were its commercial timber sale customers thus once again dispelling the myth that defendant seeks to perpetuate that the Forest Service had no knowledge or interest in what its commercial timber sales customers did with the timber harvested. Third, it is evidence that in the wake of the suspension the Forest Service was intent on restarting its commercial timber sale program. NA

37

Forest Service Resource Bulletin Int-55, "Arizona's Timber Production Mill Residue, 1984" Appraisal Report for Manaco Timber Sale Appraisal Report for Salt Timber Sale

07/1988

No objection.

38 39

12/09/1994 Document is incomplete. 01/21/1994 Document is incomplete and contains highlighting of an unknown origin.

See response at PXs 31-34, supra. With respect to the government's assertion that the document is incomplete, Plaintiff relies on its response at PXs 31-34, supra. With respect to the highlighting, it was added prior to litigation by employees or agents of Plaintiff and accordingly cannot be removed now for trial. Plaintiff does not intend to offer any arguments based on the fact that certain portions were highlighted or based on the highlighting itself. Accordingly, there is no basis for objecting to the fact the document contains highlighting, and Plaintiff would not object to the Court simply disregarding the highlighting. Alternatively, even if Plaintiff were attempting to make some substantive point from the highlighting, any foundational issues presented by the highlighting can be established at trial.

40

Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Tonto National Forest

Foundation: document is unsigned.

The Foundation for the document can be established by direct testimony of Precision Pine's employees at trial.

7

Case 1:98-cv-00720-GWM 41 Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Apache-Sitgreaves National Forest Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Coconino National Forest Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Kaibab National Forest Blank Forest Service Form 2400-14 (9/91), "Bid for Advertised Timber Sale" with attached "Instructions to Bidders"

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Foundation: document is unsigned and undated.

The Foundation for the document can be established by direct testimony of Precision Pine's employees at trial.

42

Foundation: document is unsigned and undated.

The Foundation for the document can be established by direct testimony of Precision Pine's employees at trial.

43

Foundation: document is unsigned.

The Foundation for the document can be established by direct testimony of Precision Pine's employees at trial.

44

Foundation; relevance.

This is the Forest Service standard bid form for advertised timber effective 3/31/94, and is self-authenticating under FRE 902(5) and admissible under RCFC 44(a) as an official publication of a government entity. Alternatively, the identity and authenticity of the document can be established at trial through a variety of witnesses. It is relevant because it is the from pursuant to which Precision Pine bid on several of the timber sale contracts here in issue and because it requires each bidder to indicate whether or not it is a manufacturer. Based on the Forest Service's interest and knowledge as to whether bidders like Precision Pine were manufacturers of timber into lumber, the Forest Service simply cannot credibly assert that the impact of a long-term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable.

8

Case 1:98-cv-00720-GWM 45 Blank Forest Service Form 2400-43 (2/91), "Certification of Nonsubstitution of Timber Purchased and Disposition of Domestically Processed and Exported Timber."

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Foundation; relevance.

This is a portion of the Forest Service standard bid package for advertised timber effective 02/91, and is self-authenticating under FRE 902(5) and admissible under RCFC 44(a) as an official publication of a government entity. Alternatively, the identity and authenticity of the document can be established at trial through a variety of witnesses. It is relevant because it is the form pursuant to which Precision Pine bid on several of the timber sale contracts here at issue and because it requires each bidder to, among other things, furnish the name and address of the plant(s) to which the timber on the sale will be delivered and to furnish, prior to hauling the timber to a different location, similar data about that location. Based on the Forest Service's interest and knowledge as to the plant(s) where companies like Precision Pine hauled the timber from Forest Service timber sale contracts, the Forest Service simply cannot credibly assert that the impact of a long-term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable. This is a Forest Service standard form effective February 1994 on which its purchasers must report the export of any private timber in the geographical area surrounding each of the contractor's plants. It is self-authenticating under FRE 902(5) and admissible under RCFC 44(a) as an official publication of a government entity. Alternatively, the identity and authenticity of the document can be established at trial through a variety of witnesses. It is relevant because it is a form that demonstrates the level of Forest Service's interest not only in the timber that was processed through the contractor's sawmill but also what timber owned by the contractor could have been processed through that mill. Based on the Forest Service's interest and knowledge as to where companies like Precision Pine manufactured all timber harvested tributary to a sawmill, the Forest Service simply cannot credibly assert that the impact of a long term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable.

46

Blank Forest Service Form 2400-44 (2/91), "Export of Private Timber"

Foundation; relevance.

9

Case 1:98-cv-00720-GWM 47 Blank Forest Service Form 2400-45 (2/91), "Purchase of National Forest System Timber"

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Foundation; relevance.

This is a Forest Service standard form effective February 1994 on which its contractors were required to annually report the plant(s) to which it delivered the timber from a sale. It is self-authenticating under FRE 902(5) and admissible under RCFC 44(a) as an official publication of a government entity. Alternatively, the identity and authenticity of the document can be established at trial through a variety of witnesses. It is relevant because it demonstrates the level of Forest Service interest in where timber removed pursuant to its timber sales contracts was being manufactured into lumber. Based on the Forest Service's interest and knowledge as to the plants where timber companies like Precision Pine hauled each species of timber from each sale, the Forest Service simply cannot credibly assert that the impact of a long term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable. This is a Forest Service standard form effective February 1994 on which its contractors were required to annually report the plant(s) where timber from timber sale contracts on a given National Forest were processed into lumber. It is self-authenticating under FRE 902(5) and admissible under RCFC 44(a) as an official publication of a government entity. Alternatively, the identity and authenticity of the document can be established at trial through a variety of witnesses. It is relevant because it further demonstrates the level of Forest Service interest in where timber removed pursuant to its timber sale contract was being manufactured into lumber. Based on the Forest Service's interest and knowledge as to timber where companies like Precision Pine hauled timber removed from its timber sales contracts, the Forest Service simply cannot credibly assert that the impact of a long term suspension of all of Precision Pine's Forest Service timber sale contracts on its sawmill operations was not foreseeable.

48

Blank Forest Service Form 2400-46 (2/91), "Purchaser Certification of Timber Domestically Processed and Exported"

Foundation; relevance.

10

Case 1:98-cv-00720-GWM 49

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Declaration of Milo Larson in Forest Guardian 05/28/1997 Hearsay ­ under FRE 804 a v. Dombeck prior sworn statement is admissible only if the witness is unavailable.

This document, as an exhibit in a law suit, is self authenticating pursuant to FRE 901 (b) (7) in that it was authorized by law to be recorded or filed and in fact was filed in the referenced court proceedings. Contrary to defendant's allegation it is not hearsay. Rather it constitutes the admission of a party-opponent that: 1. under the terms of the timber sale contract the Forest Service is liable for interest on deposits; 2. When many timber sale contracts in a large geographic area are suspended for a long period of time, there is the potential to destroy businesses that cannot operate any of their contracts and consequently their manufacturing plants; and 3. In such circumstances, the government could face broad damages for businesses being unable to operate enough of their contracts to avoid loss from mill closings--something which could result in millions of dollars in damages being paid by the government. See FRE 801. Even if it is hearsay, it is also admissible as an exception to the hearsay rule under FRE 807 because of strong guarantees of trustworthiness that exist due to the fact that it is a statement from a government official made under penalties of perjury. (Indeed, we believe that even defendant would have to agree that a statement made by a Forest Service official under penalties of perjury in a federal court proceeding should have an extremely high guarantee of trustworthiness.) Also, the statement is offered as evidence of a material fact, it is more probative than any other evidence for the point intended, and the interests of justice would best be served by its admission.

50

Affidavit of Alan Lucas in Greater Gila 02/14/1995 Hearsay ­ under FRE 804 a Biodiversity v. USFS prior sworn statement is admissible only if the witness is unavailable.

This document, as an exhibit in a law suit, is self authenticating pursuant to FRE 901 (b)(7) in that it was authorized by law to be recorded or filed and in fact was filed in the referenced court proceedings. Contrary to defendant's allegation, it is not hearsay. Rather it constitutes the admission of a party-opponent that in event of a unilateral suspension of operations on a sale that pursuant to C6.01 the Forest Service would be responsible for: 1. expenses involved in maintaining cash deposits;

11

Case 1:98-cv-00720-GWM

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2. legal counsel expenses; and 3. expenses associated with the interruption or shutdown and start up of the purchaser's sawmill. See FRE 801. Even if it is hearsay, it is also admissible as an exception to the hearsay rule under FRE 807 because of strong guarantees of trustworthiness that exist due to the fact that it is a statement from a government official made under penalties of perjury, (Indeed, we believe that even defendant would have to agree that a statement made by a Forest Service official under penalties of perjury in a federal court proceeding should have an extremely high guarantee of trustworthiness.), it is offered as evidence of a material fact, it is more probative than any other evidence for the point intended, and the interests of justice would best be served by its admission. 51 52 53 Expert Report of Martin L. Devere Resume of Martin L. Devere Expert Report of James L. Matson 11/14/2003 Addressed in a separately filed motion in limine. 11/14/2003 Hearsay. 11/16/2003 Hearsay. NA Pursuant to RCFC 26 (a) (2) this document is a part of Mr. Devere's report. As such it is admissible to the same extent as the report. This "objection" is both hypocritical and so frivolous so as to warrant sanctions pursuant to Rule 11. The document is an expert report which the plaintiff was required by RCFC 26(2)(B) to prepare with respect to a witness employed to give expert testimony. In this respect it is identical to no less than six reports prepared by putative experts employed by the defendant which the defendant seeks to put in evidence, i.e. DX numbers 775, 776, 777, 778, 796, 797. It is also admissible under FRE 807 in that not only is it more probative on the point of the financial impact of the permanent loss of an outlet for pulpwood and chips to timber companies operating in Arizona than mere testimony but the interests of justice and judicial economy will be best served by the introduction of the document into evidence rather than by plaintiff having to essentially recreate the document through lengthy testimony from Mr. Matson. Pursuant to RCFC 26(a)(2) this document is a part of Mr. Matson's report. As such it is admissible to the same extent as the report. 12

54

Resume of James L. Matson

11/16/2003 Hearsay.

Case 1:98-cv-00720-GWM 55 Resume of Ronald D. Lewis undated

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Relevance; hearsay.

This document has sufficient guarantees of trustworthiness, having been attached to a declaration made earlier in these proceedings under the penalties of perjury to be admitted under FRE 807. It is relevant to show the positions that he held within the Forest Service in particular his position in the Forest Service headquarters in the 5 ½ years leading up to the suspension here in issue. Pursuant to RCFC 26 (a)(2) this document is a part of Mr. Ness' report. As such it is admissible to the same extent as the report. NA

56 57

Curriculum Vitae of Robert Ness Summary Comparison of Precision Pine's Prices v. Random Length's Prices: Moulding & Better

11/14/2003 Hearsay. Authenticity; foundation; underlying documents are inadmissible (hearsay); exhibit does not accurately represent underlying documents; exhibit not based upon voluminous documents (2 documents); exhibit prepared by counsel. Addressed in a separately filed motion in limine. Authenticity; foundation; underlying documents are inadmissible (hearsay); exhibit does not accurately represent underlying documents; exhibit not based upon voluminous documents (2 documents); exhibit prepared by counsel. Addressed in a separately filed motion in limine.

58

Summary Comparison of Precision Pine's Prices v. Random Length's Prices: 5/4 #2 Shop

NA

13

Case 1:98-cv-00720-GWM 59 Summary Comparison of Precision Pine's Prices v. Random Length's Prices: 5/4 #3 Shop

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Page 14 of 60 NA

Authenticity; foundation; underlying documents are inadmissible (hearsay); exhibit does not accurately represent underlying documents; exhibit not based upon voluminous documents (2 documents); exhibit prepared by counsel. Addressed in a separately filed motion in limine. Authenticity; foundation; underlying documents are inadmissible (hearsay); exhibit does not accurately or fairly represent underlying documents; exhibit not based upon voluminous documents (2 documents); exhibit prepared by counsel. Addressed in a separately filed motion in limine. Authenticity; foundation; exhibit includes comments and footnotes that are not properly part of a summary; exhibit prepared by counsel. Addressed in a separately filed motion in limine. Hearsay.

60

Summary Comparison of Precision Pine's Prices v. Random Length's Prices: Paragraph 99

NA

61

Summary Comparison of Bids on 14 suspended sales

NA

62

Western Wood Products Assoc. (WWPA) 01/1995 Inland Index Logs

Pursuant to FRE 803 (17) commercial publications like this that contain market quotations, compilations, etc., and that are generally used and relied on by persons in particular occupations, are not excluded by the hearsay rule. NA 14

63

Profit Projection Sheets for Bunger Timber Sale 12/12/1990 No objection. (2 pages)

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Profit Projection Sheets for Holder Timber Sale 06/28/1988 Document contains (3 pages) handwriting of unknown origin. Profit Projection Sheets for Ridge Timber Sale 09/26/1989 Document contains illegible (4 pages) handwriting of unknown origin. Profit Projection Sheets for Limestone Timber 05/23/1989 Document contains Sale (4 pages) handwriting of unknown origin. Profit Projection Sheets for Limestone Timber 09/12/1991 No objection. Sale (2 pages) Profit Projection Sheets for Cap Mamie Timber 03/22/1990 No objection. Sale (2 pages) Profit Projection Sheet for Hidden Timber Sale 12/27/1990 No objection. (1 page) Profit Projection Sheets for Hidden Timber Sale 02/26/1990 Document contains (2 pages) handwriting of unknown origin. Profit Projection Sheets for Red Lake Timber 11/30/1989 Document contains Sale (3 pages) handwriting of unknown origin. Profit Projection Sheets for Aspen Lake Timber 09/25/1991 No objection. Sale (3 pages) Profit Projection Sheets for Barber Timber Sale 09/27/1993 Document contains (2 pages) handwriting of unknown origin. Profit Projection Sheet for Kettle Timber Sale 03/23/1997 No objection. (1 page) 15

The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. NA NA NA The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. NA The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. NA

65

66 67 68 69 70

71

72 73

74

Case 1:98-cv-00720-GWM 75 76 77 78

Document 336-2

Filed 04/28/2005

Page 16 of 60 NA NA NA

Profit Projection Sheets for McNeil Timber Sale 03/07/1990 No objection. (3 pages) Profit Projection Sheet for McNeil Timber Sale 03/14/1990 No objection. (1 page) Profit Projection Sheet for Gamma Timber Sale 06/29/1993 No objection. (1 page) Profit Projection Sheets for Kendrick-Saddle 11/24/1997 Document contains Timber Sale (2 pages) handwriting of unknown origin.

The handwriting on the document is limited to a circle drawn around the header of one page of the document. Precision does not intend to make any arguments or ask the Court to draw any conclusions based on the handwritten circle. Precision would not object to the Court simply disregarding the handwritten circle. NA NA The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. The authorship and other foundational elements of the handwritten portions of the document can be established at trial through the direct testimony of Precision Pine employees. NA NA NA

79 80 81

Profit Projection Sheet for All Fir under 09/22/1994 No objection. contract (1 page) Profit Projection Sheet for Saginaw-Kennedy 09/17/1994 No objection. Timber Sale, Smallwood (1 page) Profit Projection Sheets for Canyon Timber 01/18/1989 Document contains Sale (3 pages) handwriting of unknown origin. Profit Projection Sheets for St. Joe Timber Sale 12/11/1991 Document contains (2 pages) handwriting of unknown origin. Profit Projection Sheet for Hutch-Boondock 10/31/1995 No objection. Timber Sale (1 page) Profit Projection Sheets for Manaco Timber 01/11/1995 No objection. Sale (2 pages) Profit Projection Sheet for Saginaw-Kennedy 09/17/1994 No objection. Timber Sale (1 page) 16

82

83 84 85

Case 1:98-cv-00720-GWM 86

Document 336-2

Filed 04/28/2005

Page 17 of 60

Letter from Clifford Dils to Lorin Porter, re: 08/14/1995 Document is incomplete and suspension of Manaco unsigned.

This is a two page document, and the second page contains the signature of the author. The copy of the letter included in Plaintiff's trial exhibits, as well as the copy presented and produced to the Government, contained the second page. Moreover, Plaintiff intends to provide the Defendant with a copy of its exhibits for trial, which will include the second page of the Exhibit. NA NA

87 88

Letter from John Smith to Patty Bennett, re: 08/23/1995 No objection. Jersey Horse Operating Schedule Letter from Keith Pajkos to John Smith, re: Park 07/17/1996 No objection. Multi-product sale, Precision out of compliance therewith Letter from John Smith to Keith Pajkos, re: 08/29/1996 No objection. requesting one-year extension on Park timber sale Letter from Keith Pajkos to John Smith, re: 09/04/1996 No objection. extension for Park timber sale will be granted upon certain conditions Letter from John Smith to Keith Pajkos, re: can 09/26/1996 No objection. State estimate cost of contract. Letter from Keith Pajkos to John Smith, re: cost 10/03/1996 No objection. of contract Fragment of Letter from John Smith to Keith 10/07/1996 Foundation; relevance. Pajkos, re: reasons Precision would want to complete sale. Letter from Keith Pajkos to John Smith, re: 10/09/1996 No objection. reduced costs of contract Letter from John Smith to Keith Pajkos, re: 10/10/1996 No objection. accepting terms of State's proposal 17

89

NA

90

NA

91 92 93

NA NA This document is relevant because it is a contemporaneous indication that Precision Pine needed timber during the suspension and that it in fact wanted to complete the Park timber sale contract. The requisite foundation can be established at trial by Precision Pine employees. NA NA

94 95

Case 1:98-cv-00720-GWM 96 97 98

Document 336-2

Filed 04/28/2005

Page 18 of 60 NA NA NA

Memo from John Smith to Lon Porter, re: State 10/11/1996 No objection. agreed to lesser payment Letter from John Smith to Keith Pajkos, re: 10/17/1996 No objection. payment, with photocopy of check Letter from Keith Pajkos to John Smith, re: 10/17/1996 No objection. lesser payment due; contains handwritten memo from "J" re: check in the mail. Letter from Lewis Tenney to Milo Larson, re: 09/27/1995 Hearsay. Forest Service's proposed settlement with Enviro plaintiffs is not economically feasible for timber companies Stone Forest Products Corp computer-generated various settlement statements for Tri-Star delivery of pulpwood to Snowflake for weeks ending: 9/17, 9/24, 10/01, 10/08, 10/15, 10/26, 11/03, 11/19, 11/26 in 1995. Foundation; hearsay; relevance. Exhibit is comprised of multiple documents. To the extent this document was generated directly from computer records, it was not produced to the United States in discovery and should be excluded. E.g., RCFC 37.

99

This document is not hearsay; rather it is evidence that early in the suspension period Precision Pine offered to cancel or modify certain of its existing sales in exchange for the lifting of the suspension on its other sales. The document, as an offer to cancel or modify several of Precision Pine's existing contracts, is also admissible under FRE 803(6) as business record. This document is admissible pursuant to FRE 803(6). The records in question were compiled in the normal course of Stone Forest Product's business to record pulpwood shipments received at its plant in Snowflake, Arizona and transmitted to Tri-Star Logging. In the normal course of its business, the information thereon was then adopted by Tri-Star and incorporated into its business records as the volumes which it sold to Stone and on which it expected payment. Indeed, modern decisions suggest that common commercial records such as these can be admitted to prove that a company bought or sold goods. See Christopher B. Mueller and Laird C. Kirkpatrick, 4 Federal Evidence § 449 (2d ed.)(2004). See United States v. Flom, 558 F2d 1179, 1182 (5th Cir. 1997) (invoices prepared and sent by one company and held by another were adequately authenticated by testimony of official of the latter company without testimony by anyone from preparing company; where circumstances demonstrate trustworthiness, testimony by one who kept record or supervised preparation is unnecessary). These documents can easily be authenticated by the president of Tri-Star Logging at trial.

100

18

Case 1:98-cv-00720-GWM 101 Handwritten "Logger Pay" memos for Tri-Star various hauling pulpwood to Stone from various sales dated in 1995: 8/2 (Dutch Joe), 8/17 (Merritt), 8/17 (Dutch Joe), 9/7 (Brookbank), 9/7 (Merritt), 9/7 (Dutch Joe), 9/21 (Brookbank) Harvest projection for the volume remaining as of August 25, 1995 on the 11 Forest Service sales that were breached and summary of volume of sawlogs by payment unit on specified sales

Document 336-2

Filed 04/28/2005

Page 19 of 60

These logger pay records document the fact that, in the time just prior to the Exhibit is comprised of multiple documents. With the suspension, Tri-Star Logging was hauling pulpwood from timber sales owned by exception of documents Precision Pine to Stone. relating to the Brookbank contract, the exhibit is irrelevant. Authenticity; foundation; underlying documents are inadmissible (hearsay); exhibit presents argument and inferences that are not properly included in a summary; exhibit not based upon voluminous documents (5 documents); exhibit prepared by counsel. Addressed in separately filed motion in limine. NA

102

103

Summary Effects of Mexican Spotted Owl 09/14/1995 Foundation; hearsay. Injunction

As described in the text of the pleading to which this chart is attached, defendant's objection to this exhibit is untimely and thus should be considered to have been waived. Without prejudice to this position, defendant's "objections" are totally frivolous and, in fact, sanctionable under Rule 11. That is, not only is the document self authenticating under FRE 901(7) as a report, statement or data compilation from the Forest Service itself and not hearsay as an admission of a party-opponent under FRE 801(d)(2), but this Court has already accepted this document as an assessment by the Forest Service of the impact of the suspension on the timber industry in Region 3. See Precision Pine & Timber v. United States, 50 Fed. Cl. 35, 47 (2000).

19

Case 1:98-cv-00720-GWM 104 Map of Arizona Hearsay.

Document 336-2

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Page 20 of 60

Defendant's "objection" is frivolous and possibly sanctionable under Rule 11. That is, it is well-settled that a court may take judicial notice of geographical boundaries. Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952) Under the FRE 201, a court to take judicial notice of an adjudicative fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Here the government cannot reasonably question that this map represents the geography of the State of Arizona. Accordingly, this court should take judicial notice of PX 104. See Jaffe v. Pallotta TeamsWorks, 374 F.3d 1223, 1228 (D.C. Cir. 2004) (taking judicial notice of a map of Virginia and Washington, D.C. in wrongful death action for purposes of reviewing the territory covered by a 300-mile bicycle ride to raise funds for charity); Hartford Fire Ins. Co. v. Orient Overseas Containers Lines, Ltd., 230 F.3d 549, 556 (2d Cir. 2000) (taking judicial notice of Rand McNally & Co. atlas to account for distances traveled on trucking and rail transports); Government of Canal Zone v. Burjan, 6 F.2d 690, 693-95 (5th Cir. 1979) ("This court has on several occasions taken judicial notice, or has approved a trial court's taking judicial notice of geographical locations and boundaries."). Moreover, maps, even those made prior to trial by a third party are admissible if authenticated by a person with personal knowledge to attest to its correctness. This document is admissible under FRE 803(18) which, among other things allows for the admission of documents if they are shown in some other way to be authoritative. Christopher B. Mueller and Laird C. Kirkpatrick, 4 Federal Evidence § 468 (2d ed., 2004). This exception to the hearsay rule is based on traditional notions regarding trustworthiness. Id. In this regard, there is an assurance of trustworthiness in that books and articles are written by people with special training and skills and read by others in the field, so pressures of competition and criticism and the impulse to secure and preserve professional stature provide incentives toward care and accuracy. Id. (citations omitted). The instant document was edited by John A. Helms, professor emeritus at the University of California­Berkley and chairman of the Forest and Science and Technology Board of the Society of American Foresters and was published by the latter organization. Based on these two facts the document is eminently trustworthy. If the court desires more before admitting this document, plaintiff will, as permitted by FRE 803(18), call the document to the attention of one of its forestry experts, who can attest to its reliability as an authority. 20

105

Excerpts from The Dictionary of Forestry (John A. Helms, Ed., 1998): cover, title page, 18-19, 88,144-145, 160-161

Hearsay.

Case 1:98-cv-00720-GWM 106 107 108 109 110 Stipulation from Silver v. Babbitt

Document 336-2

Filed 04/28/2005

Page 21 of 60 NA NA NA NA NA

10/18/1995 No objection.

Order Approving Stipulation from Silver v. 10/18/1995 No objection. Babbitt Agreement to Modify Mud Timber Sale 08/29/1996 No objection.

Letter from Ken Broyles to Lorin Porter, re: 03/11/1996 No objection. Mud sale release from injunction Letter from John Smith to Dan Panks, 03/25/1996 No objection. requesting some Payment Units on the Mud sale be open for harvest Letter from John Smith to Richard Stevens, 04/05/1996 No objection. requesting waiver of the "1 June restriction" on Mud Letter from Richard Stevens to John Smith, 04/12/1996 No objection. declining to waive clause CT6.314# (Timing of Logging Operations) in Mud Contract Letter from Richard Stevens to John Smith, re: 05/24/1996 No objection. operations suspended do due increased fire risk Timber Sale Inspection Report for Mud Timber 08/01/1996 No objection. Sale, re: opening some units for harvest; waiving certain restrictions for 1996 season Letter from Lorin Porter to Chip Cartwright, re: 06/25/1996 Hearsay. sawmill operations being closed as result of suspension

111

NA

112

NA

113 114

NA NA

115

This document is not hearsay it is merely an indication that on June 25, 1996 Precision Pine made inquiry of the Forest Service as to (a) what it was doing to get the injunction lifted and (b) what compensation Precision Pine could expect from the Forest Service as a result of the suspension. The document is also admissible under FRE 803(6) as business record.

21

Case 1:98-cv-00720-GWM 116 Letter from Lorin Porter to Chip Cartwright, re: rec'd Hearsay. Precision's situation as a result of suspension/ 06/26/1996 injunction

Document 336-2

Filed 04/28/2005

Page 22 of 60

As a document that put the Forest Service on notice that its suspension of Precision Pine's contracts was a breach of contract that was resulting in substantial financial harm, this document is not hearsay. In any event it is admissible both under FRE 803(6) as a business record and under FRE 803(1) as an explanation of an event or condition, Precision Pine's substantial financial harm owing to the Forest Service's breach, that was occurring at the time that the document was written. NA

117

Agreement between Stone Container Corp. and 08/15/1997 No objection. Precision Pine - transfer of Kettle Timber Sale from Precision to Stone, with attached Letter from Lorin Porter to Gary Yantis, dated Dec. 29, 1997, re: remaining balance on sale due. Forest Service Form 2400-12 (9/72) - Third- 11/03/1997 No objection. party Agreement (Timber Sale) between Precision and Stone for transfer of Kettle Timber Sale Letter from Robert Leaverton to Lorin Porter, 06/04/1997 Relevance ­ compensation as re: Forest Guardians suspension of the Hay and a result of the Forest O.D. Ridge Timber Sales Guardians suspension in 1997 is the subject of another action filed by Precision Pine. Letter from David Harris to Lorin Porter, re: 06/06/1997 Relevance ­ compensation as Forest Guardians suspension of the Saginawa result of the Forest Kennedy Timber Sale Guardians suspension in 1997 is the subject of another action filed by Precision Pine.

118

NA

119

This letter from the Forest Service is relevant to show that in the early part of the post-suspension period, this sale was again suspended by the Forest Service.

120

This letter from the Forest Service is relevant to show that in the early part of the post-suspension period, this sale was again suspended by the Forest Service.

121

Letter from David Harris to Lorin Porter, re: 06/06/1997 Relevance ­ compensation as This letter from the Forest Service is relevant to show that in the early part of the Forest Guardians the suspension of the Brann a result of the Forest post-suspension period, this sale was again suspended by the Forest Service. Timber Sale Guardians suspension in 1997 is the subject of another action filed by Precision Pine.

22

Case 1:98-cv-00720-GWM 122

Document 336-2

Filed 04/28/2005

Page 23 of 60

Letter from Clifford Dils to Lorin Porter, re: 06/06/1997 Relevance ­ compensation as This letter from the Forest Service is relevant to show that in the early part of the post-suspension period, this sale was again suspended by the Forest Service. Forest Guardians suspension of the Salt Timber a result of the Forest Sale Guardians suspension in 1997 is the subject of another action filed by Precision Pine. Letter from Ken Broyles to Lorin Porter, re: 06/03/1997 Relevance ­ compensation as This letter from the Forest Service is relevant to show that in the early part of the Forest Guardians suspension of the U-Bar a result of the Forest post-suspension period, this sale was again suspended by the Forest Service. Timber Sale Guardians suspension in 1997 is the subject of another action filed by Precision Pine. Letter from Clifford Dils to Lorin Porter, re: 06/06/1997 Relevance ­ compensation as This letter from the Forest Service is relevant to show that in the early part of the Forest Guardians suspension of the Manaco a result of the Forest post-suspension period, this sale was again suspended by the Forest Service. Timber Sale Guardians suspension in 1997 is the subject of another action filed by Precision Pine. Letter from Steve Bennet to Precision Pine & 02/12/1998 Relevance; hearsay. Timber, re: Stone is closing Snowflake Pulpmill; will no longer accept pulpwood The document is not hearsay in that it is not an assertion nor is it offered to prove the truth of the matters contained therein. Rather it is offered merely to confirm that on Feb 12, 1998 Stone gave notice of its intent to terminate its practice of purchasing pulpwood. Even if this document were hearsay, it is also admissible pursuant to FRE 803(1). First, it is a document explaining several events or conditions; Stone's closing down of its Kraft Pulping System and its providing notice of a change in operating procedures, i.e., to no longer purchase pulpwood, that was made at or shortly after the time of the event or condition. As such, it is admissible under FRE 803(1). Second, as a notice of intent by a customer to terminate an existing business relationship, it is a business record admissible under FRE 803(6). It is relevant because it shows that in early 1998 Precision Pine lost its major market for pulpwood thus making the profitable harvesting of its existing multi-product sales more difficult.

123

124

125

23

Case 1:98-cv-00720-GWM 126

Document 336-2

Filed 04/28/2005

Page 24 of 60

Letter from Steve Bennet to Lon Porter, re: 02/12/1998 Relevance; hearsay. Stone's ending chip purchases

The document is not hearsay in that it is not an assertion nor is it offered to prove the truth of the matters contained therein. Rather it is offered merely to confirm that on Feb 12, 1998 Stone gave notice of its intent to terminate its chip purchase contract with Precision Pine. Even if this document were hearsay, it is also admissible pursuant to FRE 803(1). First, it is a document explaining several events or conditions, Stone's closing down of its Kraft Pulping System and it's providing required notice to terminate its chip purchase agreement with Precision Pine that was made at or shortly after the time of the event or condition. As such, it is admissible under FRE 803(1). Second, as a notice of intent by a customer to terminate an existing contract, it is a business record admissible under FRE 803(6). It is relevant because it shows that in early 1998 Precision Pine lost its major market chips thus making the profitable harvesting and processing of all sales less profitable. The document is not hearsay in that it is not an assertion nor is it offered to prove the truth of the matters contained therein. Rather it is offered merely to confirm that on Feb. 12, 1998 Stone gave notice of its intent to get out of the kraft pulping business. Even if this document were hearsay it is also admissible pursuant to FRE 803. It is a document explaining an event or condition, Stone's closing down of its Kraft Pulping System that was made at or shortly after the time of the event or condition. As such, it is admissible under FRE 803(1). It is relevant because it shows that in early 1998 Precision Pine lost its major market for pulpwood thus making the profitable harvesting of its existing multi-product sales more difficult. This document is relevant because it is evidence of the significance of the destruction of the Winslow sawmill. The document is admissible pursuant to FRE 803(1) because it is a document explaining an event or condition, that Precision Pine suffered a fire at its Winslow mill on Sept. 17, 1998 that was made at or shortly after the time of the event or condition. As such, it is admissible under FRE 803(1). To the extent that it also lays out a basis for Precision Pine to receive contract term adjustment under clause B8.21 (b) of certain of its contracts (delay in processing timber due to damage to primary timber processing facility) it is also admissible as a business record under FRE 803(6). The document is relevant to show date of the fire at the Winslow sawmill.

127

Letter from Steve Bennett to John Kirkpatrick, 02/12/1998 Relevance; hearsay. Acting Regional Forester, re: Stone is notifying Forest Service that it will no longer accept chips or pulpwood at Snowflake

128 129

Memorandum from John Bedell to Timber 11/09/1999 Relevance. Purchasers, re: Precision's Winslow mill destroyed by fire on Sept. 17, 1998 Letter from Lorin Porter to Steve Gunzel, re: 09/24/1998 Relevance; hearsay. Winslow fire of Sept. 17, 1998

24

Case 1:98-cv-00720-GWM 130 Precision Pine's harvest projection, "Anticipated Quantity of Wood Per Contract (in MBF (log scale)," as provided in Plaintiff's Answers to Interrogatories.

Document 336-2

Filed 04/28/2005

Page 25 of 60

Foundation; hearsay.

This exhibit is admissible pursuant to FRE 807 in that, at the very insistence of the defendant, plaintiff submitted a specific statement from its president that each interrogatory was answered under oath. See Defendant's Status Report of March 15, 2005. As such, it has the requisite minimum circumstantial guarantee of trustworthiness so as not to be excluded as hearsay. Moreover, the statement is more probative on the point than simply the recollection of the company's president on the likely manner the company would have harvested numerous sales during the suspension period. Lastly, admitting this exhibit, the topic of which was the subject of substantial questioning at deposition and will likely be the subject of both substantial direct and cross-examination at trial, will no doubt serve the interests of justice. This is particularly true since such examination in the absence of this document will consume a great deal of time in a trial where the Court has indicated that it intends to limit the amount of time that each party has to litigate its case. Stripped of its label as an answer to an interrogatory, this document is also admissible pursuant to FRE 701 as opinion evidence of a lay witness as to the manner in which, as of August 24, 1995, it could and would have harvested the timber on the breached sales between August 25, 1995 and December of 1996.

131

Expert Report on Damages by Robert Ness 11/14/2003 Hearsay. ("Ness Report" on Suspension Period Damages)

This "objection" is both hypocritical and so frivolous so as to warrant sanctions pursuant to Rule 11. The document is an expert report which the plaintiff was required by RCFC 26(2)(B) to prepare with respect to a witness employed to give expert testimony. In this respect it is identical to no less than six reports prepared by putative experts employed by the defendant that the defendant seeks to put in evidence, i.e., DX numbers 775, 776, 777, 778, 796, and 797. The document is also admissible under (a) FRE 703 as the bases of the opinion of an expert (b) FRE 807 in that not only is it more probative on the point of the damages that Precision Pine suffered during the suspension than mere testimony but the interests of justice and judicial economy will be best served by the introduction of the document into evidence rather than by plaintiff having to essentially recreate the document through lengthy testimony from Mr. Ness and (c) as a summary and calculation under FRE 1006. Indeed, the admission of this summary of voluminous books and records offers the only practicable means of making their contents available to the Court.

25

Case 1:98-cv-00720-GWM 132 133 134

Document 336-2

Filed 04/28/2005

Page 26 of 60

Forest Service Manual § 2430.2, effective 02/12/1990 Document is incomplete. February 12, 1990 Forest Service Manual § 2430.2, effective April 04/05/2004 Document is incomplete. 5, 2004 Forest Service Amendment 129 Manual § 2430.2, 5/83 05/1983 Document is incomplete.

The documents are complete for what their description state -- the version of Section 2430.2 of the Forest Service Manual that became effective on the respective date noted. With respect to the fact that Plaintiff is only introducing one part of the Forest Service Manual, Plaintiff responds at it did at PXs 31-34 -- in sum, the Government has not alleged that any other portions of the Manual "ought in fairness to be considered contemporaneously" with Section 2340.2 under FRE 106, and even if certain other portions of the Forest Service Manual help to further define, clarify, or place Section 2340.2 in context, the Government has not shown that other remedies are not adequate. NA

135

136

137

Forest Service Form 2400-14 (5/91) "Bid for No objection. Advertised Timber," (Bid Form) for U-Bar sale with attached: "Instructions to Bidders" Forest Service Form 2400-43 (2/91), "Certification of Nonsubstitution of Timber Purchased and Disposition of Domestically Processed and Exported Timber" for U-Bar sale. Forest Service Form 2400-14 (3/94) "Bid for No objection. Advertised Timber," (Bid Form) for Kettle sale with attached: "Instructions to Bidders" Blank Forest Service Form 2400-43 (2/91), "Certification of Nonsubstitution of Timber Purchased and Disposition of Domestically Processed and Exported Timber." Forest Service Form 2400-43 (2/91), 07/13/1993 No objection. "Certification of Nonsubstitution of Timber Purchased and Disposition of Domestically Processed and Exported Timber" for SaginawKennedy Timber Sale for CY 92.

NA

NA

26

Case 1:98-cv-00720-GWM 138

Document 336-2

Filed 04/28/2005

Page 27 of 60

Forest Service Regional Summary, "Effects of 08/28/1995 Foundation. Injunction on Timber Harvest Activities on Region Three's Existing and Planned Timber Sale Program"

As described in the text of the pleading to which this chart is attached, defendant's objection to this exhibit is untimely and thus should be considered to have been waived. Without prejudice to this position, defendant's "objection" is totally frivolous and, in fact, sanctionable under Rule 11. That is, not only is the document self authenticating under FRE 901 (7) as a report, statement or data compilation from the Forest Service itself but this Court has already concluded that "On August 28, 1995, the Forest Service prepared a document called "Summary Of Effects Of Injunction On Timber Harvest Activities On Region Three's Existing And Planned Timber Sales Program." Precision Pine & Timber v. United States, 50 Fed. Cl. 35, 46 (2000). Due to administrative error, Plaintiff included a handful of exhibits (12) that are duplicates of at least portions of other exhibits. However, Plaintiff has already completed copying and scanning its exhibits and much pre-trial work product that refers to one or both iterations of the exhibit at various places. Replacing all references would be burdensome and time consuming. Also, all of the duplicates are known to the Government, and so there is no prejudice to the Government. Also, the mere 12 duplicate exhibits are not excessive out of 301 exhibits, and so are not overly duplicative. Other objections are answered at PX 40. Due to administrative error, Plaintiff included a handful of exhibits (12) that are duplicates of at least portions of other exhibits. However, Plaintiff has already completed copying and scanning its exhibits and much pre-trial work product that refers to one or both iterations of the exhibit at various places. Replacing all references would be burdensome and time consuming. Also, all of the duplicates are known to the Government, and so there is no prejudice to the Government. Also, the mere 12 duplicate exhibits are not excessive out of 301 exhibits, and so are not overly duplicative. Other objections are answered at PX 41.

139

Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Tonto National Forest

Foundation: document unsigned. Same as PX 40.

140

Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Apache-Sitgreaves National Forest

Foundation: document unsigned, undated and contains handwriting of unknown origin. Same as PX 41.

141

Forest Service Form 2400-46 (12/86), Purchaser undated Certification of Timber Domestically Processed and Exported, for Precision Pine & Timber, Inc., CY '92, Coconino National Forest

Foundation: document Due to administrative error, Plaintiff included a handful of exhibits (12) that are unsigned and undated. Same duplicates of at least portions of other exhibits. However, Plaintiff has already as PX 42. completed copying and scanning its exhibits and much pre-trial work product t