Free Motion in Limine - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM

Document 313-5 Filed 04/18/2005 Page 1 of 3 U.S. Department Justice of Civil Division

DMC:KA_B:DHarrington DJ No. 154-98-720

Telephone: Facsimile:

(202) 307-0277 (202) 307-0972

Washinglon, D.C. 20530

Febmary11,2005 Via Facsimile & U.S. Mail Alan I. Saltman, Esq. Saltman & Stevens, P.C. 1801 K S~eet, N.W. Washington, D.C. 20006 Precision Pine & Timber, Inc. v. United States, Fed. C1. No. 98-720C(Judge George W. Miller) Mr. Saltman: I amwriting to flag a number outstandingissues that havearisen in the Precision Pine case. It of is myexpectation that many,if not all, of these issues can be amicablyresolved. First, as you are aware, the Court has given the United States through February28, 2005to conducta deposition of Precision Pine's expert on post-suspensionharvesting. I received earlier this weeka supplementalreport from Precision Pine's expert, Robert Ness, and wouldlike to arrange a mutuallyconvenienttime for his deposition. In keepingwith the pretrial schedule, we proposethat Mr. Ness's deposition be conducted on February 24 or 25 in Washington,D.C. Please let me know whichof these dates best suits your schedule and whetheryou prefer to hold the deposition in your office or here. As for Mr. Ness's report, it contains a list of documents that he examined preparing his in report. Apparently this list of documents not complete.Se___qe is Letter from RobertA. Ness to AlanI. Salt-manat I (stating that "among other things" the listed documents were examined).To the extent that Mr. Nessrelied uponany documents addition to those listed, please identify themimmediately.Se____~e in RCFC 26(a)(2)(b). Additionally, the general descriptions provided by Mr. Ness, coupled with the that Precision Pine's documents have not been numbered,makeit impractical or impossible to identify most of the documents that Mr. Ness has listed. Please contact meto discuss the best wayto resolve this problem. Second, as you mayrecall, Precision Pine's expert, Martin Devere, producedwith his expert report a single pageofa prix/ate mill study that he relied uponin support of his conclusions. Thefull report has not been producedand is not available In the public domain.Giventhat Precision Pine has identified Mr. Devereas a trial witness on its preliminary witness list, please produceimmediately the

Case 1:98-cv-00720-GWM

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-2full mill study from whichthe page attached to Mr. Devere's expert report wasextracted. We reserve the right to seek to deposeMr. Deverefollowing the production of this information. If the requested information is not provided, weanticipate moving have Mr. Devere's testimony excluded. to Third, Precision Pine has listed DougMcDonald, President, Timber Data Company, its on preliminary witness list. Thewitness list states that Mr. McDonald testify about "the volume will of timber offered by the Forest Service in the post-suspension period" "to the extent that it is not stipulated by the parties." Thedraft stipulations you providedlast fall do not proposestipulations concerningthe volumeof timber that the Forest Service offered for sale post-suspension. Please provide any proposedstipulations regarding post-suspension sale volumesas soon as possible, but in any event not later than February 18, 2005. Additionally, the address providedfor Mr. McDonald a post office is box. Please provide an actual, physical address for Mr. McDonald. As you are aware, Mr. McDonald not previouslyidentified as a potential witness. Se__..~e was Pl.'s Answer Def;'s Interrog. No. 1. Accordingly, pursuant to RCFC to App.A ~[ 13, the United States plans to depose Mr. McDonald stipulations on post-suspension sale volumescannot reached if in the next 10 days. Weintend to take Mr. McDonald's deposition on a mutually convenient date not later than March10, 2005. Please contact meto address the scheduling of this deposition. Fourth, I haveenclosedwith this letter several errata sheets relating to depositionstaken in this action. Theseerrata sheets mayhave been previously provided. In any event, I do not anticipate that any of the corrections will prove to be material or controversial. Fifth, Precision Pine's interrogatory answershave not been verified as required by RCFC 33. See RCFC 33(b) ("each interrogatory shall be answeredfully in writing and under oath"). anticipate including Precision Pine's interrogatory answerson our preliminary exhibit list. Consequently, please forward pages verifying Precision Pine's original and supplementalinterrogatory answersno later than Friday, February 18, 2005. Sixth, I havereviewed draft stipulations of fact that Precision Pine providedlast fall. I have the enclosed a revised draft. As you will see, the revised draft reworksmany proposedstipulations. Other stipulations havebeen eliminatedbecausethe proposedstipulation is irrelevant in light of the Court's ruling on summary judgment, was overly vague, or because we do not agree with the proposed stipulated fact. Theenclosed draft is a workin progress, whichI amproviding for your convenience and as a starting point for discussions. I anticipate that the parties will add to and revise the enclosed draft stipulations as weget closer to trial. Lastly, I would like to reiterate our interest in entering into proceduralstipulations. As we proposedpreviously, webelieve that it wouldbe beneficial for the parties to stipulate to the authenticity of documents that were produced(or madeavailable for copying)fi:om their respective files discovery in this action. Additionally, with respect to documents that were madeavailable pursuant to RCFC 33(d), we propose that the parties stipulate that the documents business records. are

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-3Please contact meat your earliest convenience address these issues, as well as any other to issues that you wishto discuss. Verytruly yours,

David A. Harrington Trial Attorney CommercialLitigation Brmach Enclosures