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

Case 1:98-cv-00126-JFM

Document 784

Filed 04/07/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC CaMP ANY,

Plaintiff
No. 98- 126C

(Senior Judge Merow) THE UNITED STATES OF AMERICA
Defendant.

PLAINTIFF' S MOTION TO STRIKE DEFENDANT' S UNNAMED FACT WITNESS FROM THE OFFICE OF NUCLEAR SECURITY AND INCIDENT RESPONSE AND FACT WITNESSES BOYEA , DAVIS HELIN , LEPISTO , AND SHYLOSKI
Pursuant to RCFC 7 and the Court' s November 4 , 1998 pretrial order, Yankee Atomic

respectfully requests that the Court exclude all testimony of the government' s witness designated
only as " Member from the Office of Nuclear Security and Incident Response " and defendant'

fact witnesses Weslie Boyea , Edward M. Davis , Frank J. Helin , Charles Lepisto , III , and E.
Shylosky. 2

STATEMENT OF FACTS
On March 28 , 2003 , Yankee Atomic submitted its paragraph 3 pretrial submissions. The

government subsequently sought , and obtained , an enlargement of time for submission of its

paragraph 3 submissions. By Order dated , December 24 2003 (at p. 4), the Court granted the
1 This motion should also be deemed applicable to
154C and Maine Yankee v.

Connecticut Yankee

v.

United States

No. 98-

United States

No. 98- 474c.

2 Messrs. Boyea and Lepisto are only listed as witnesses in

Helin are only listed as witnesses in witness in

Yankee Atomic;

Messrs. Davis and and Messr. Shylosky is only listed as a
Maine Yankee;

Connecticut Yankee.

, "

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government' s request , and gave the government through February 12 , 2004 with no further

time to be sought , absent a showing of exceptional good cause " to make its submissions. The
government was unable to meet that deadline , and on February 19 , 2004 , the government

submitted its updated witness list for the upcoming trial on damages. That updated list includes

one witness , who the government identified only as a "Member from the Office of Nuclear

Security and Incident Response " and did not provide his/her name , address , or telephone

number. The government also identified as witnesses , Messrs. Boyea, Davis , Helin , Lepisto, and
Shylosky, but did not provide a " succinct statement of the nature and scope of the testimony to be presented by each such witness " as required by the Court' s November 4 , 1998 pretrial order.

The listing for each such witness states that they "will testify about the authenticity of
documents...

and other relevant matters. (emphasis added). The government' s witness list

provides no further information regarding what " other relevant matters " these witnesses might

address. Moreover, these witnesses were not included on the government's prior witness list or
previously deposed by Yankee Atomic.

In an effort to narrow the issues for further discovery and avoid the necessity for
intervention by the Court , Yankee Atomic requested , in a letter to the government dated March
2004 , that the government provide the name and contact information of its unnamed witness.

Attached as exhibit 1. In the letter , Yankee Atomic also asked the government to confirm that
the additional fact witnesses listed above would appear solely to testify regarding the authenticity
of documents , so that the parties could avoid altogether, or at least sharply limit , the need for

their depositions. Yankee Atomic requested a reply from the government by March 30 , 2004.

,"

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The government has failed to respond , and , as evidenced in the attached correspondence , has
demonstrated a general lack of cooperation with final pre- trial
ARGUMENT
activity. 3

RCFC Appendix A specifically provides:

Failure of a party to list a witness shall result , absent agreement of the parties or a showing of a compelling reason for the failure , in the exclusion of that witness testimony at trial. Any witness whose identity has not been previously disclosed shall be subject to discovery. As to each witness , the party shall indicate the specific topics to be addressed in the expected testimony.
RCFC Appendix A (13) (b) (2002). The Court' s order of November 4 , 1998 also

requires the proper identification of witnesses. The Court made clear in its pretrial order
that each party must furnish for each witness intended to be called to testify... a succinct
statement of the nature and scope of the testimony to be presented by each such witness.

The power of the trial court to exclude exhibits and witnesses not disclosed in compliance
with its discovery and pretrial orders is essential to the judge s control over the case.
g., Sellers v.

See

Mineta 350 F.3d 706 , 711 (8

th Cir. 2003) (finding that the trial court acted

properly in excluding a fact witness whom the appellant had failed to disclose to

opposing counsel during pretrial proceedings). The government' s disclosure of the
identity of its unnamed individual from the Office of Nuclear Security and Incident

Response is long overdue. The government's failure places Yankee Atomic in the highly
Letter from Stouck to Lester of March 1 , 2004 (requesting dates when government experts would be available for deposition regarding their new expert witness reports), exhibit 2; letter from Shapiro to Lester of March 22 2004 (requesting cooperation to narrow disputes at trial over admissibility of exhibits), exhibit 3; letter from Shapiro to Lester of March 26 , 2004 (transmitting notice of expert depositions after not receiving any availability information from the government), exhibit 4; letter from Stouck to Crawford of April 6 , 2004 (noting government failure to provide availability information for experts ' depositions), exhibit 5; letter from Shapiro to Lester of April 7 , 2004 (transmitting notice of fact witness depositions after not receiving any availability information from the government), exhibit 6.
See

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prejudicial position of having to prepare to rebut potential testimony that Yankee Atomic
has not been permitted to explore during discovery.

Similarly, if permitted by the Court , the government's failure to disclose the

nature and scope of the testimony its fact witnesses , Weslie Boyea, Edward M. Davis
Frank J. Helin , Charles Lepisto , III , and E. C. Shylosky, will substantially and

unnecessarily complicate final pretrial activity and prejudice Yankee Atomic in its

preparation for trial. Among other harms , this failure by the government prevents
Yankee Atomic from conducting appropriate depositions of these witnesses , gathering necessary documentation to rebut their testimony, and adequately preparing for the
presentation of their testimony at trial.
CONCLUSION

The government's lack of cooperation with final pretrial activity is making this process
unnecessarily complicated and laborious for everyone involved , and prejudices Yankee Atomic.
For the foregoing reasons , Yankee Atomic respectfully requests that the Court preclude the
government from offering the testimony of the unnamed "Member from the Office of Nuclear
Security and Incident Response, " Weslie Boyea, Edward M. Davis , Frank J. Helin , Charles
Lepisto , III , and B.C. Shylosky.

4 As an alternative to precluding all testimony from the five witnesses the government has identified by name , the court should , at least , limit their testimony to the authentication of documents on the issues identified in the government's witness lists.

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Dated: April 7, 2004

Respectfully submitted

sf Jerry Stouck by sf Monica Freas
Jerry Stouck

Spriggs & Hollingsworth 1350 I Street , NW , Ninth Floor Washington , DC 20005 (202) 898- 5800 (202) 682- 1639 (facsimile)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:

Robert L. Shapiro Spriggs & Hollingsworth