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

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 1 of 31

No. 98-488C (Judge Braden)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SACRAMENTO MUNICIPAL UTILITY DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant.

DEFENDANT'S MOTION TO EXCLUDE CERTAIN DOCUMENTS NOT USED WITH A WITNESS BY PLAINTIFF AT TRIAL

PETER D. KEISLER Assistant Attorney General OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 ALAN J. LO RE Senior Trial Counsel JOSHUA E. GARDNER SCOTT R. DAMELIN TODD J. COCHRAN ELIZABETH THOMAS Trial Attorneys Department of Justice DAVID M. COHEN Director HAROLD D. LESTER, JR. Assistant Director

RUSSELL A. SHULTIS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-7561 Fax: (202) 307-2503 Attorneys for Defendant

November 28, 2005

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 2 of 31

TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii DEFENDANT'S MOTION TO EXCLUDE CERTAIN DOCUMENTS NOT USED WITH A WITNESS BY PLAINTIFF AT TRIAL . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. II. III. IV. V. VI. VII. CONTRACTOR DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 NEWSPAPER AND JOURNAL ARTICLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 UNATTRIBUTABLE PAPERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CORRESPONDENCE FROM AND TO OTHER UTILITIES . . . . . . . . . . . . . . 8 MISCELLANEOUS HEARSAY OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 8 INCOMPLETE DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 DOCUMENTS THAT SMUD SEEKS TO INTRODUCE POST-TRIAL . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

i

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 3 of 31

TABLE OF AUTHORITIES CASES Blue Water Environmental v. United States, 60 Fed. Cl. 48 (2004) ......................................................................................................... 3 Florida Power & Light Co. v. United States, No. 48-483C, 2003 WL 24129961 (Fed. Cl. May 21, 2003) (unpublished) ..................... 9 Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993) ...................................................................................................... 6 Marsee v. United States Tobacco Co., 866 F.2d 319 (10th Cir. 1989) ........................................................................................... 4 Mayor of The City of Philadelphia v. Educational Equality League, 415 U.S. 605 (1973) ........................................................................................................... 6 Power Auth. of the State of New York v. United States, 62 Fed. Cl. 376 (2004) ....................................................................................................... 9 United States v. Orleans, 425 U.S. 807 (1976) ....................................................................................................... 3, 4 Yankee Atomic Electric Co. v. United States, No. 98-126C, 2004 WL 2450874 (Fed. Cl. Sept. 17, 2004) (unpublished) ....................... 4 Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238 (4th Cir. 1999) ............................................................................................. 4

ii

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 4 of 31

IN THE UNITED STATES COURT OF FEDERAL CLAIMS SACRAMENTO MUNICIPAL UTILITY DISTRICT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) )

No.98-488C (Judge Braden)

DEFENDANT'S MOTION TO EXCLUDE CERTAIN DOCUMENTS NOT USED WITH A WITNESS BY PLAINTIFF AT TRIAL Pursuant to this Court's scheduling order dated July 27, 2005, as amended November 10, 2005, defendant, the United States, respectfully requests that the Court exclude from the record in this case certain documents not used by plaintiff, Sacramento Municipal Utility District ("SMUD"), with a witness at trial. SUMMARY OF ARGUMENT As an initial matter, of the approximately 344 documents that SMUD seeks to retain in evidence in this case and did not use with a witness at trial,1 SMUD only used 109 of these documents in its post-trial briefing. The Government is unaware of any basis for retaining these 235 documents in the record in this case, and the Court should exclude these documents.2 Further, of these 235 documents that SMUD did not use with a witness or in its post-trial briefing, at least 25 of these documents are from DOE contractors; 11 of these documents are

In an effort to streamline the objection to documents, the parties previously exchanged lists of exhibits that the parties wished to keep in evidence. The Government's motion to exclude certain documents is predicated upon the list of exhibits that plaintiff previously provided to the Government. Should plaintiff seek to revise its list of exhibits that it seeks to introduce into evidence, we reserve the right to make additional objections to those documents. A list of the 235 documents that SMUD has identified that it seeks to retain in the record and did not use either at trial or post-trial is attached to this motion as Attachment 1.
2

1

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 5 of 31

from newspapers, magazines, or other similar sources; two of these exhibits are from unidentified sources; 14 of these documents are correspondence to and from other utilities; eight documents lack foundation and contain inadmissible hearsay; three documents are incomplete; and 16 of these documents were submitted post-trial in response to the Court's April 21, 2005 show cause order. Therefore, even if the Court generally decides to retain in evidence the 235 documents that were never used by SMUD either during or post-trial, the Court should exclude the 77 documents identified below because they are inadmissible. ARGUMENT I. CONTRACTOR DOCUMENTS

Despite the fact that the Government presented unrefuted testimony at trial that contractors of the Department of Energy ("DOE") do not speak for DOE unless DOE officially adopts the contractors' statements, SMUD seeks to introduce into evidence 25 contractor documents.3 Because, with limited exception, contractors do not speak on behalf of DOE, these contractor documents do not constitute party admissions and, rather, are inadmissible hearsay. At trial, Christopher Kouts, the director of the Office of Systems Analysis and Strategy Development within DOE's Office of Civilian Radioactive Waste Management, explained that DOE regards contractor reports as "essentially the view of the contractor, and unless the Department issues its own report under its own letterhead, with the DOE stamp, as well as a document number, that's not DOE position or DOE policy." Tr.2110:25-2111:6 (Kouts). Mr. Kouts stated that, until DOE issues its own report, DOE views contractor reports as simply

These documents include: PX 7; PX 17; PX 60; PX 70; PX 94; PX 146; PX 168; PX 184; PX 192; PX 207; PX 212; PX 216; PX 254; PX 326; PX 366; PX 400; PX 475; PX 565; PX 636; PX 720; PX 722; PX 723; PX 732; PX 752; PX 831. 2

3

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 6 of 31

providing advice. Tr.2111:7-9 (Kouts). SMUD presented no testimony or evidence that contradicts Mr. Kouts' testimony. To the extent SMUD asserts that activities performed by a contractor to an agency are the same as those performed by the agency itself, and that all contractor activities should be attributed to the agency, SMUD is simply wrong. First, these documents are not admissible under Federal Rule of Evidence 803(8)(A) as a public record or reports of DOE's activities, because they are not agency documents in any sense. In Blue Water Environmental v. United States, 60 Fed. Cl. 48 (2004), this Court held that a private contractor which operated a laboratory under an M&O contract with the Department of Energy could not be deemed a Federal "agency" for purposes of Tucker Act bid protest jurisdiction even if, as alleged, DOE exercised day-to-day supervision of the contractor's activities. Id. at 52. The Court further determined that, even if such supervision was sufficient to establish "agency," evidence was required to establish that DOE supervised or directed the subcontracting process about which the plaintiff was complaining. Id. In sum, the plaintiff was required to prove that an agency relationship was established by the contract, and that it created an agency relationship with regard to the specific work about which agency was being claimed, before the contractor could be deemed an "agent" for purposes of that work. In United States v. Orleans, 425 U.S. 807 (1976), the Supreme Court explained that the critical element in distinguishing an "agency" of the Federal Government from a "contractor" for purposes of the Federal Tort Claims Act is the power of the Federal Government to control the detailed physical performance of the contractor. Therefore, the issue is not whether the entity receives Federal money and must comply with Federal regulations, but whether its daily

3

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 7 of 31

operations are supervised by the Federal Government. Id. at 814. The Supreme Court explained that any contrary finding would be inconsistent with general contracting principles: Billions of dollars of federal money are spent each year on projects performed by people and institutions with contracts with the Government. These contractors act for and are paid by the United States. They are responsible to the United States for compliance with the specifications of a contract or grant, but they are largely free to select the means of its implementation. . . . Similarly, by contract, the Government may fix specific and precise conditions to implement federal objectives. Although such regulations are aimed at assuring compliance with goals, the regulations do not convert the acts of entrepreneurs or state government bodies into federal government acts. Id. at 815-16. Simply put, contractor documents should not be admitted under Federal Rule of Evidence 803(8) because they are not agency documents in any sense. See Marsee v. United States Tobacco Co., 866 F.2d 319, 325 (10th Cir. 1989) (neither an International Agency for Research on Cancer nor a National Institute of Health report qualified as a Government record under FRE 803(8)(B) because their contents were drawn from "a conference attended by scientists from various countries" and "a panel of scientists and non-scientists after a conference at which invited speakers present papers," rather than the agency itself). As such, they do not fit the rationale for the FRE 803(8) hearsay exception. Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir. 1999). 4

In another SNF case, Yankee Atomic Electric Co. v. United States, No. 98-126C, 2004 WL 2450874 (Fed. Cl. Sept. 17, 2004) (unpublished), this Court admitted contractor-created documents at the plaintiff's request. We respectfully disagree with the rationale of that decision. However, regardless of that disagreement, the Court's ruling in this case must be based upon the evidence presented in this case. To the extent that the Court evaluated other evidence in Yankee that was not submitted here and that caused the Court to find that contractor-created documents somehow constitute "admissions" by the Government, that fact is irrelevant to the Court's 4

4

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 8 of 31

Further, the contractor documents that SMUD seeks to retain in evidence do not constitute admissions by DOE pursuant to Federal Rule of Evidence 801(d)(2). FRE 801(d)(2) provides that a statement is not hearsay if [t]he statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or © a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment . . . The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision ©, [or] the agency or employment relationship and scope thereof under subdivision (D) . . . . FRE 801(d)(2). SMUD has presented no evidence that any of the contractor documents that it seeks to retain in evidence were made by individuals "authorized" by DOE to make the statements contained in those documents. Further, contractors are not "agents" of DOE. Since none of the 25 contractor documents that SMUD seeks to retain in evidence indicate that DOE has adopted these documents as DOE's own statements or policy, these documents are pure hearsay and are not subject to any exception. Because SMUD has identified no proper basis for their admission as evidence in this case, the Court should exclude these documents.5

evaluation of this issue here since this Court's decision must be based upon the evidence submitted to the Court in this case. In its March 16, 2005 pre-trial order in this case, the Court tentatively granted SMUD's motion with respect to the designation of the prior testimony of Ed Benz, Robert Burgoyne, and Billy Cole, but reserved the right "to change such admissibility ruling and not rely on such testimony." Based upon the testimony of Mr. Kouts, the Court also should reconsider its preliminary decision regarding Messrs. Benz, Burgoyne, and Cole and exclude their previous testimony from the record in this case. 5
5

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 9 of 31

II.

NEWSPAPER AND JOURNAL ARTICLES

Another category of hearsay documents that SMUD seeks to retain in evidence are 11 exhibits comprised of newspaper articles, journal articles, and sections of books.6 Because these documents constitute inadmissible hearsay, and often hearsay within hearsay, the Court should exclude these documents. Federal Rule of Evidence 801© defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or the hearing, offered in evidence to prove the truth of the matter asserted." As explained in Federal Rule of Evidence 802, "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Further, pursuant to Federal Rule of Evidence 805, "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Courts have routinely recognized that documents such as the ones that SMUD seeks to introduce into evidence constitute hearsay. See Mayor of The City of Philadelphia v. Educational Equality League, 415 U.S. 605, 618 n.19 (1973) (acknowledging that newspaper account of events constituted hearsay); Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (concluding that newspaper article should have been stricken from summary judgment filing because it constitutes inadmissible hearsay). For example, PX 421, PX 426, PX 462, PX 619, PX 705 and PX 974 all appear to be excepts from the publication "Nuclear Fuel." Not only do these exhibits constitute inadmissible

These documents include: PX 190; PX 265; PX 421; PX 426; PX 462; PX 522; PX 619; PX 705; PX 972; PX 973; PX 974. 6

6

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 10 of 31

hearsay, but SMUD has laid absolutely no foundation to support the admission of these exhibits into evidence. Further, these documents appear to be excerpted articles of larger publications and, therefore, are incomplete. Similarly, PX 190 appears to be an excerpt of a book entitled "Proving Business Damages." However, SMUD did not seek to use this document with any witness, and laid no foundation for its introduction into evidence. Further, this exhibit is incomplete, as it appears to be only a small portion of a much larger book. Consequently, because each of the identified exhibits constitute inadmissible hearsay, and often hearsay within hearsay, the Court should exclude these exhibits from the record in this case. III. UNATTRIBUTABLE PAPERS

Another category of documents that SMUD seeks to retain in evidence are papers that lack any sign of an identified author. Because SMUD has failed to lay the proper foundation or authentication for these documents, they should be excluded from the record in this case. For example, PX 586, a draft article concerning the potential co-disposal of GreaterThan-Class-C radioactive low-level waste ("GTCC") with high-level waste lacks an identified author. Similarly, PX 861 is a pre-decisional draft paper concerning GTCC that lacks an author. SMUD has failed to lay any foundation for the admissibility of these papers. Consequently, because these papers constitute inadmissible hearsay and lack the requisite foundation and authentication, the Court should exclude them from evidence in this case.

7

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 11 of 31

IV.

CORRESPONDENCE FROM AND TO OTHER UTILITIES

In addition, SMUD seeks to introduce into evidence at least 11 documents reflecting correspondence from other utilities to DOE, as well as correspondence from DOE to other utilities.7 Because these documents have absolutely no relevance to SMUD's alleged damages in this case, the Court should exclude these documents from evidence. Indeed, at least two of these documents, PX 287 and PX 307, are letters from the Yankee utilities concerning issues related to DOE's acceptance of their fuel and, therefore, constitute inadmissible hearsay. Further, SMUD has failed to lay any foundation that would otherwise allow the Court to receive PX 302 and PX 307 into evidence. Consequently, because these documents are both irrelevant and, in some cases, contain inadmissible hearsay, the Court should exclude these documents from evidence in this case. V. MISCELLANEOUS HEARSAY OBJECTIONS

In addition to the previously discussed categories of objectionable documents, SMUD also seeks to admit into evidence other documents containing inadmissible hearsay. For example, PX 966 appears to be a submission by Portland General Electric Company to the Nuclear Regulatory Commission concerning decommissioning. SMUD did not call any witness to lay the necessary foundation for this document at trial, and this document constitutes inadmissible hearsay.

These documents include: PX 251; PX 278; PX 279; PX 287; PX 302; PX 307; PX 417; PX 433; PX 485; PX 745; PX 746. 8

7

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 12 of 31

Similarly, PX 644 is a paper concerning at-reactor storage related to private fuel storage authored by Eileen Supko. This document constitutes inadmissible hearsay and is not subject to any exception. Consequently, there is no basis for this paper to remain in evidence in this case. PX 791 is a letter from counsel for SMUD to counsel for the Government concerning certain offsets to SMUD's damages claim. SMUD's counsel did not testify at trial, and there is no basis for this letter to be accepted into evidence in this case. PX 869 is a paper by individuals who work at Pacific Nuclear and Weston regarding the significance of canistered spent fuel. SMUD did not call either of the authors at trial to establish the requisite foundation for this paper, and this paper constitutes inadmissible hearsay. PX 522 and PX 701 are documents drafted by the NEI organization related to dry storage. Again, SMUD failed to establish any foundation for the introduction of these two documents, and these documents constitute inadmissible hearsay. PX 583 appears to be a draft of talking points for a meeting between the then-Secretary of Energy and commercial utilities concerning a meeting regarding potential settlement of the spent nuclear fuel litigation. However, SMUD failed to establish that these draft talking points were ever actually presented by the Secretary of Energy (or anyone else at DOE for that matter). Further, the discussion of potential settlement options plainly falls under Federal Rule of Evidence 408, and the Court should exclude this document from evidence in this case. See Power Auth. of the State of New York v. United States, 62 Fed. Cl. 376, 379 (2004) (striking SNF settlement agreement as inadmissible under FRE 408); Florida Power & Light Co. v. United States, No. 48-483C, 2003 WL 24129961 (Fed. Cl. May 21, 2003) (unpublished) (same).

9

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 13 of 31

Similarly, the Court should exclude PX 653 from evidence. PX 653 purports to be an amendment to the Standard Contract between the DOE and PECO as a result of a potential settlement between the parties. In addition to being inadmissible pursuant to FRE 408, SMUD failed to elicit any testimony at trial concerning the facts or circumstances behind this document, or the relevance of this document to SMUD's claimed damages. VI. INCOMPLETE DOCUMENTS

SMUD also seeks to have admitted into evidence three documents that are incomplete. These documents, PX 559, PX 634, and PX 709, appear to be portions of the Government's legal briefs and discovery responses in other cases. Specifically, PX 559 is a portion of the Government's petition for a writ of certiorari in United States v. Northern States Power Company. PX 634 is a portion of the Government's brief in the United States Court of Appeals for the Federal Circuit in Maine Yankee Atomic Power Co. v. United States, Nos. 99-5138, 995139, and 99-5140. Finally, PX 709 is a portion of the Government's proposed findings of uncontroverted fact regarding the rate of spent nuclear fuel acceptance in Yankee Atomic Electric Co. v. United States, No. 98-126C. Putting to one side the questionable relevance of these documents to SMUD's damages in this case, the Government objects to the selective portions of the Government's legal papers that are represented in PX 559, PX 634, and PX 709, and respectfully request that the Court exclude these documents from evidence on the grounds that these documents are incomplete.

10

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 14 of 31

VII.

DOCUMENTS THAT SMUD SEEKS TO INTRODUCE POST-TRIAL

Finally, SMUD seeks to introduce into evidence 16 documents that it identified posttrial for use in its response to the Court's April 21, 2005 show cause order.8 On November 10, 2005, seven months after the conclusion of the two-week evidentiary hearing in this case, SMUD moved for leave to file a "third supplemental exhibit list." In addition to the inclusion of "exhibits that SMUD included in witness notebooks at trial that were not previously listed on SMUD's prior exhibit lists," SMUD included on this list "additional exhibits that SMUD relied on in its Response to Memorandum Opinion And Order To Show Cause Dated April 21, 2005." The Government is unaware of any basis for allowing SMUD to introduce into evidence post-trial exhibits that it had not identified prior to the close of the evidentiary hearing in this case. Indeed, certain of these documents are plainly inappropriate for inclusion as evidence in this case. For example, PX 1017 is an excerpt of DOE employee Christopher Kouts' trial testimony in Indiana Michigan Power Co. v. United States, No. 98-486C. In its March 16, 2005 order, the Court denied SMUD's request to introduce the prior testimony of Government witnesses that the Government called as witnesses at trial in this case. Despite this Court's order, and the fact that Mr. Kouts testified in this case, see Tr.2102-2212 (Kouts), SMUD again seeks to introduce the prior testimony of DOE witnesses that testified at trial. The Court should reject SMUD's attempt to contravene the Court's previous order. Further, PX 1021 appears to be an article from the publication "Inside INEEL." This document is inadmissable hearsay. In addition, SMUD has failed to lay any foundation for this

These post-trial documents include the following: PX 1014; PX 1015; PX 1016; PX 1017; PX 1018; PX 1019; PX 1020; PX 1021; PX 1022; PX 1023; PX 1024; PX 1025; PX 1026; PX 1027; PX 1028; PX 1029. 11

8

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 15 of 31

document and has failed to establish the authenticity of this document. Therefore, in addition to the fact that SMUD seeks to improperly introduce PX 1021 into evidence post-trial, the Court should exclude this document because it constitutes inadmissible hearsay and lacks foundation or authentication. CONCLUSION For the foregoing reasons, we respectfully request that the Court grant the Government's motion to exclude the documents identified above, none of which were used by SMUD with a witness at trial.

12

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 16 of 31

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

OF COUNSEL: JANE K. TAYLOR Office of General Counsel Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 ALAN J. LO RE Senior Trial Counsel JOSHUA E. GARDNER SCOTT R. DAMELIN TODD J. COCHRAN ELIZABETH THOMAS Trial Attorneys Department of Justice

s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

s/Russell A. Shultis by Scott R. Damelin RUSSELL A. SHULTIS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-7561 Fax: (202) 307-2503

November 28, 2005

Attorneys for Defendant

13

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 17 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 18 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 19 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 20 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 21 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 22 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 23 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 24 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 25 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 26 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 27 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 28 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 29 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 30 of 31

Case 1:98-cv-00488-SGB

Document 347

Filed 11/28/2005

Page 31 of 31