Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:01-cv-00669-FMA

Document 99

Filed 07/10/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BENJAMIN & SHAKI ALLI AND BSA CORPORATION, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-669C (Judge Allegra)

DEFENDANT'S MOTION TO ADMIT DEPOSITION TESTIMONY Pursuant to Rule 32(a)(3)(F) of the Rules of this Court, defendant, the United States, respectfully requests that it be permitted to enter the deposition testimony of third-party witness, Stephen Palms, into evidence in lieu of presenting him as a witness at trial. Defendant's attorney contacted

plaintiffs' attorney, Eric Stempien, who states that at this time plaintiff opposes this motion. Rule 32(a)(3)(F) permits the deposition of a witness, whether or not a party, to be used by any party for any purpose if: upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. In this case, the interest of judicial economy and the limitations of available trial time create an exceptional circumstance that supports the use of Mr. Palms's deposition testimony to be entered into evidence, rather than having him

Case 1:01-cv-00669-FMA

Document 99

Filed 07/10/2007

Page 2 of 3

testify during trial.

At trial, Mr. Palms is expected to testify

regarding the conditions of the Collingwood apartments during his visit in January 2000. Mr. Palms testified about the exact same

issue during his deposition, and his answers are not expected to be different at trial. Moreover, plaintiffs' attorney, Eric

Stempien, was present at the deposition and had an opportunity to object to the Government's questions and to cross-exam the witness. Additionally, the Court has set aside three and a half days for trial. Admitting Mr. Palms's deposition testimony in lieu of

presenting him at trial would help to ensure that the proceedings are completed within the available time. Accordingly, the United

States respectfully requests that the Court permit the deposition testimony of Stephen Palms to be admitted into evidence in lieu of presenting him at trial. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/Mark A. Melnick by Martin F. Hockey, Jr. MARK A. MELNICK Assistant Director

2

Case 1:01-cv-00669-FMA

Document 99

Filed 07/10/2007

Page 3 of 3

OF COUNSEL: Thomas G. Massouras Office of General Counsel U.S. Department of Housing & Urban Development 77 West Jackson Boulevard Suite 2629 Chicago, Illinois 60604

s/Marla T. Conneely MARLA T. CONNEELY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street Washington, D.C. 20530 Tel. (202) 307-1011 Fax. (202) 307-0972 Attorneys for Defendant

July 10, 2007

3