Free Exhibit List - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE AND ROBERT TESTWUIDE, ) et. al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ________________________________ )

No. 01-201 L Honorable Victor J. Wolski

JOINT TRIAL EXHIBITS LIST Plaintiffs, in accordance with the Scheduling Order entered by the Court on August 7, 2006, submit the attached list of Joint Trial Exhibits (Exhibit A). No changes have been made to the Joint Exhibit List sent to the Government on September 12, 2006, except that JX147 ­ JX154 have been added. These eight exhibits are documents received on September 7, 2006 as a consequence of this Court's Order of August 7, 2006 requiring the Government to produce all Wyle Laboratory documents which fit within Plaintiffs' Requests for Production, as well as within Plaintiffs' subpoena to Wyle. Plaintiffs' Supplemental Trial Exhibit List adding those documents was sent to Defendant on September 15 and no objections were raised by Defendant. Pursuant to this Court's Order of August 7, 2006, the parties scheduled the meeting of counsel required by Sec 13.a of the Rules for August 10, 2006. The Government insisted that the meeting be by telephone. On the evening of August 9, the Government announced that it was ready to exchange exhibit lists, and that was done electronically. The Government then sent a list of 780 exhibits. The parties agreed to exchange written objections the following week, and that was done on August 16. In

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addition to the usual evidentiary objections, more than 150 documents in the list produced by the Government either had never been produced to Plaintiffs or had the wrong bates numbers. For its part, the Government pointed out duplication in 13 of Plaintiffs' exhibits and asked for some documents not previously produced. What followed over the next several weeks was a lengthy fiasco of trying to straighten out the Government's exhibits. During that period the Government sent Plaintiffs no less than three disks and two corresponding spreadsheets of documents attempting to produce, designate or harmonize its own exhibits. By September 3, 2006, those problems which could be solved were identified and resolved. On that date, Plaintiffs sent the government an email stating that they were moving their focus to trial preparation. On September 12, 2006, Plaintiffs sent the Government: 1. A Joint Exhibit List comprised of those documents from the lists submitted by both sides to which the other side entered no objection; 2. A list of Defendant's exhibits to which the Plaintiffs still objected; 3. A list of Plaintiffs' exhibits to which the Government still objected. No comment or objection was made by the Government to these lists. On September 21, the Court held a telephone status conference chiefly concerning venue and scheduling issues raised by Defendant. On that same day, the Court entered an Order dealing with venue, trial days, and other issues including the admission of joint exhibits. On September 27, the day before the parties were required to file their Exhibit Lists with the Court, the Government (at 8:15 pm) sent Plaintiffs a 53 page spreadsheet raising entirely new objections to the of joint exhibits. Specifically, the Government raised objections for the first time to 93 Joint Exhibits including, incredibly, 33 of the Government's own exhibits. Counsel for the Government affected that the reason for the

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new objections was their surprise at the paragraph in the Court's Order of September 21 that a witness need not be on the stand in order to receive a joint exhibit into evidence. However, none of the Government's new objections submitted on September 27, 2006, can reasonably be argued to be related to this Court's ruling. On September 28, 2006, Plaintiffs filed their exhibit list, specifically stating that the Joint Exhibit List, which was to be filed three days later, would be the list as it was composed on September 12, and that no alterations would be made as a consequence of the previous night's emailed list from the Government. The Joint Exhibit List filed today is the September 12, 2006 list with the additions noted in the first paragraph above. On September 28, counsel for Plaintiffs reiterated their intention to file the Joint Exhibit List as it stood. (Exhibit B ­ the redacted portion of the letter concerns an attempt to settle the case which proved unsuccessful). On September 29, counsel for the Government objected to the Plaintiffs' announced course of action (Exhibit C). Attached hereto (Exhibit D) is a timeline of events surrounding the exchange and production of exhibit lists.

Dated: October 2, 2006

Respectfully submitted,

/s/ Jack E. Ferrebee __ Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs Of Counsel:

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Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected] Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig Shuttleworth, Ruloff, Giordano & Swain 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX001 JX002 JX003 JX004 JX005 JX006 JX007 JX008 JX009 JX010 JX011 JX012 JX013 JX014 JX015

Date
7/21/2003 00/00/1999 6/6/1995 11/3/1992 8/7/1986 5/24/1993 6/24/1994 5/1/1992 3/22/2005 9/16/2002 11/30/2000 12/14/2002 9/17/1990 00/00/2005 00/00/1999 Appraisal for 1856 Pathfinder dated 7/21/03

Description

1999 AICUZ noise contour map with markings by plaintiffs Deed between T. & J. Moody & M & D Leary Deed between Donald Carlstrom and William and Betty Capps Deed for 2004 Brickell Ct., purchased by Harold & Elaine Levenson Standard Purchase Agreement between Eddie & Elizabeth Waterman and Lewis & Cynthia Klein Deed of Bargain & Sale for 2709 East Kings Rd., purchased by Carroll Lindsay Riddick Sales Contract Plaintiffs' Answers to Interrogatories - Sara Lynch Proposal for cost of windows & doors for Hoag, prepared by Boby Wills Stop-At-Home-Carpet, Inc. Invoice - Hoag Stop-At-Home-Carpet, Inc. Invoice - Hoag Hoag Deed (JLUS)(AICUZ) Planning Map (2005) 1999 AICUZ noise contour map with markings by Janet Holloway, Randy Keel, Karen Green, William Gilbert, Charles Nash, Marie Larson and Ronald Green

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX016 JX017 JX018 JX019 JX020 JX021 JX022 JX023 JX024 JX025 JX026 JX027 JX028 JX029 JX030

Date
00/00/1999 00/00/2005 6/16/1998 5/28/1996 11/12/1997 2/1/1998 06/00/2005 06/00/2005 06/00/2005 11/28/2001 11/29/2001 11/21/2001 11/20/2001 6/15/1967 00/00/0000 AICUZ map (from Robert Goodwin deposition)

Description

2005 JLUS AICUZ Planning Map with markings by Eileen May and Louis Figari. Letter to Mayor Oberndorf - Noise Contour Map and APZs Map for NAS Oceana/NALF Fentress provided for land use planning and fair disclosure. CO, NAS Oceana ltr 5726 Ser 00G/1012 of 16 Jun 98. ATAC - Airfield and Airspace Operational Study (BRAC 95) Report for BRAC '95 Final Report Response letter to Mr. Levenson from Capt Benson regarding NAS Oceana Operations Wyle 97-10 (Feb 1998) Noise Study 1995 BRAC REALIGNMENT OF NAVY F/A-18 AIRCRAFT Stewart Field Measurements - 925 Lamplight Lane Stewart Field Measurements -1301 Brant Road Decibel readings June 22, 2005 at 2004 Brickell Ct. Email re: Early copy of data Email re: Early copy of data Email Downing to Zusman with comparison SELs Email re: New F-14B Profiles -- and Costs w/ email history Deed Van Nostrand Leary house photo

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX031 JX032 JX033 JX034 JX035 JX036 JX037 JX038 JX039 JX040 JX041 JX042 JX043 JX044 JX045 06/00/2005 10/7/1998

Date
8/6/1992 2/9/2001 3/22/2001 1/16/2002 4/11/2002 4/4/2002 00/00/0000 00/00/0000 9/26/2000 00/00/0000 00/00/0000 00/00/0000

Description
Re: Purchase From: Ronald E. Rauhauge; Address: 925 Lamplight Lane, Virginia Beach, VA 23452 Nelson payment re: Naval Air Station Oceana Nelson payment re: Naval Air Station Oceana Nelson payment re: Naval Air Station Oceana Nelson payment Nelson Invoice RE: NAS Oceana class action Nelson to Kieron re: Meta-Analysis Results em w/ attached tables and reference list Nelson Profile Nelson Requested Studies Towson University Center of Geographic Information Sciences Biography of Dr. John M. Morgan, III Resume of John M. Morgan, III, Ph.D. Dennis Gruelle's data (spreadsheets) relied on for his report Dingle signed Answers to Int/RFPs Department of the Navy letter regarding APZ map for NAS Oceana and NALF Fentress

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX046 JX047 JX048 JX049 JX050 JX051 JX052 JX053 JX054 JX055 JX056

Date
8/12/2005 12/7/2000 12/12/1997 10/00/1978 09/00/1984 4/18/1996 9/3/1996 12/00/1996 12/30/1996 1/21/1997 3/28/2000 Nelson's Draft Report

Description

Emails between Boyajian and Firenze regarding Op Count at NTU/NFE Memo from Czech to Zusman re flight tracks AESO Aircraft Noise Survey Oceana and Fentress; Report No. AESO 312-78-01 CATALOG OF NOISE LEVELS FROM NAVY AIRCRAFT - AESO Report No. 313-01-84 Point paper by Daniel Cecchini regarding NAS Oceana Operations data and Noise Issues ATAC Corp document entitled, "Operational Assumptions and Scenario Descriptions for the Airfield and Airspace Operational Study of the BRAC 95 Navy F/A-18 Relocation" WYLE RESEARCH REPORT WR 96-3 Letter from Joseph Czech to Alan Zusman enclosing Wyle Research Report WR 96-3 Letter from Czech to Zusman regarding contours, with enclosures listed Memo from Director, Facilities & Engineering Division to N4, VCNO and CNO regarding Assessment of NAS Oceana EIS with notes Graph prepared by ATAC Corporation entitled, "Percent Increase of Airfield Operations from Baseline," regarding projected operations increases for the various realignment and closure scenarios considered in the EIS for the Realignment of the F/A-18 C/D Email exchange between Alan Zusman, Jeffrey Borowy, and Tom Peeling, et al. re F-18 E/F and F-18 C/D versus F-14 noise levels WYLE RESEARCH REPORT WR 97-10

JX057 JX058 JX059

00/00/2000 8/13/1997 09/00/1997

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX060 JX061 JX062 JX063 JX064 JX065 JX066 JX067 JX068 JX069 JX070 JX071 JX072 JX073 JX074

Date
12/3/1997 02/00/1998 3/4/1998 4/28/2006 9/29/2005 00/00/1999 2/1/1998 00/00/0000 00/00/1999 10/1/1997 5/15/1998 2/21/2000 10/23/1997 2/15/1998 00/00/0000

Description
Memo from Duncan Holaday to Deputy Chief of Naval Operations regarding flight tracks stated in the Draft EIS Excerpts from WYLE RESEARCH REPORT WR 97-10 AIRCRAFT NOISE STUDY FOR THE BRAC REALIGNMENT OF NAVY F/A-18 AIRCRAFT Excerpts from the FEIS for the Realignment of F-18 C/D Aircraft Map of Test Plaintiff Properties, Virginia Beach, Virginia Appraisal Report of Test Case Plaintiffs by Alexander Salzberg and Dennis Gruelle Official Map of AICUZ for NAS Oceana, NALF Fentress and NAS Chambers Field Excerpts from Wyle Report WR 97-10 regarding impact of F/A-18 C/D aircraft realignment Graph of air operations at NAS Oceana and NALF Fentress for years 1998 through 2000 Official Map of AICUZ for NAS Oceana, NALF Fentress and NAS Chambers Field CV NATOPS Manual Volume II of Final EIS (FEIS) of West Coast siting of F/A-18 E/F NAS Lemoore (Draft) 1999 AICUZ Report for Hampton Roads Naval Ait Installations Letter from Captain S. E. Benson to The Honorable Charles S. Robb, US Senate regarding affect of aircraft operations Wyle Research Technical Note TN 97-3 Graph Containing Air Traffic Activity Totals 1999-2000

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX075 JX076 JX077 JX078 JX079 JX080 JX081 JX082 JX083 JX084 JX085 JX086 JX087 JX088 JX089

Date
5/25/1979 00/00/0000 5/26/2000 2/1/1998 11/00/1989 2/1/1998 2/18/1998 3/31/1997 10/30/1998 02/00/1996 9/29/1997 8/22/1997 1/1/1999 11/1/1997 11/19/1996 OPNAV INST 11010.36

Description

Memo from NAS Oceana Commanding Officer regarding FCLP Note regarding operations at NAS Oceana and NALF Fentress from April 17, 2000 through May 10, 2000 ANNUAL FLIGHT OPERATIONS AT NAS OCEANA FOR UPDATED SCENARIO 2 Draft Aircraft Noise Survey Update (HMMH Report No. 280400.11) for NAS Oceana Wyle Research Technical Note TN 97-3 ATAC Airfield and Airspace Operational Study for the 1995 BRAC Realignment of Navy F-18 Aircraft. Fact Sheet from Air Operations Dept at NAS Oceana re operational numbers from 1985 to 1996 Graph of Air Operations Counts at NAS Oceana from 1997 to 1998 Wyle Research Report WR 96-3 Memo from Captain S.E. "Sodbuster" Benson to all Commanding Officers regarding NAS Oceana FCLP Course Rules ATAC report "Airfield and Airspace Operational Study for the 1995 BRAC Realignment of Navy F/A-18 Aircraft" Official Map for AICUZ for NAS Oceana, NALF Fentress and NAS Chambers Field Wyle Research Technical Note TN 97-3 ATAC report "Airfield and Airspace Operational Study for the 1995 BRAC Realignment of Navy F/A-18 Aircraft"

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX090 JX091 JX092 JX093 JX094 JX095 JX096 JX097 JX098 JX099 JX100 JX101 JX102 JX103 JX104

Date
12/12/1997 4/24/1989 7/6/1999 11/27/2000 4/7/1999 04/00/1995 2/15/1996 11/1/1995 12/19/2002 4/11/1988 2/8/2005 2/16/2005 2/16/2005 12/9/1996 1/13/1997

Description
Handwritten note forwarding attached response from Joe Czech to Alan Zusman regarding NAS Oceana letter regarding changes to flight tracks Memo regarding FCLP pattern at NAS Oceana Email from Lisa Padgett to Patty Hankins regarding the Steinberg Dog Kennel Emails between Dan Cecchini, Capt Shawn Smith, et al. regarding Oceana operations count Spreadsheet showing operations and complaints at Oceana and Fentress from 1973 to 1998 Wyle Research Report WR 94-18 ATAC Corp Report entitled, "Naval Air Station Oceana Airfield and Airspace Operational Study for BRAC 95." Noise Map Noise Curves regarding F-18A/C OPNAV Instruction 11010.36B OPNAV INSTRUCTION 11010.36A Letter from Captain Thomas Keeley to Virginia Beach Mayor Meyera Oberndorf regarding opposition to "by-right" development. Email (redacted) exchange involving Thomas Keeley, Alan Zusman and Raymond Firenze, et al. AICUZ and density Email from Thomas Keeley to Raymond Firenze regarding the JLUS Email exchange between Michael Abkin and Alan Zusman, et al. re NAS Oceana and NAS Beaufort operations Letter from Abkin to Zusman regarding Oceana/ Cherry Point Scenario Results Working Paper (Partial Draft)

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX105 JX106 JX107 JX108 JX109 JX110 JX111 JX112 JX113 JX114 JX115 JX116 JX117 JX118 JX119

Date
00/00/2000 4/24/1997 5/13/1997 5/13/1997 1/15/1998 11/00/2001 2/2/2006 9/22/2005 2/28/1998 8/26/2005 8/26/2005 8/26/2005 8/26/2005 8/26/2005 8/26/2005

Description
Graph entitled, "Percent Increase of Airfield Operations from Baseline," prepared by ATAC Corporation Email from Derek Huber to Alan Zusman re night FCLP Letter from Mike Abkin at ATAC Corporation to Alan Zusman regarding the Scenario Results Working Paper submitted. Report by the ATAC, "NASMOD: Airfield and Airspace Operational Study for the 1995 BRAC Realignment of Navy F/A18 Aircraft - Scenario Results Working Paper." Email from Derek Huber to Alan Zusman re NAS Oceana aircraft operations. Redacted emails between Cecchini, Logan et al regarding E/F EIS progress / Wyle contract Emails between Micah Downing and Robert Smith et al with attached DNL values for May property Email from Micah Downing attached Test Plaintiffs' Geographical and Noise Level Information Excerpts from the FEIS for the Realignment of F-18 C/D Aircraft from Cecil Field to other East Coast Installations Final Appraisal of 1805 Loganberry Court (James and Virgie Riddick) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 2004 Brickell Court (Harold and Elaine Levenson) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 925 Lamplight Lane (Kenneth and Tammy Hill) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 1856 Pathfinder Drive (Sean and Graciela Ryan) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 3209 Chicory Court (Michael and Diane Leary) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 305 Corvette Lane (Herbert and Betty Van Nostrand) as of 1999 by Alexander Salzberg and Dennis Gruelle

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX120 JX121 JX122 JX123 JX124 JX125 JX126 JX127 JX128 JX129 JX130 JX131 JX132 JX133 JX134 3/16/2004 11/5/2003 10/7/2003 8/4/2003 6/5/2003 10/8/2003 8/13/2003

Date
8/26/2005 8/26/2005 8/26/2005 8/26/2005 8/26/2005 2/1/2006 9/29/2005

Description
Final Appraisal of 409 Pallets Road (William and Betty Capps) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 1301 Brant Road (Sara Lynch Hoag) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 912 Carolina Avenue (Theodore and Sue Dingle) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 2244 Windy Pines Bend (Eddie and Elizabeth Waterman) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 2709 E Kings Road (Caroll Lindsay) as of 1999 by Alexander Salzberg and Dennis Gruelle Final Appraisal of 620 Little Neck Road (Eileen May) as of 1999 by Alexander Salzberg and Dennis Gruelle Resume of Alexander Salzberg GIS Maps Keeley Presentation to Virginia Beach AICUZ Task Force regarding encroachment. Letter from T. Keeley to Ashby Moss, Virginia Beach Planning Department, regarding residential development Letter from T. Keeley to Virginia Beach planning commission regarding development in 70-75db noise zone Capt. Keeley letter to Barbara Duke, Dept of Planning for Virginia Beach opposing a residential development. Capt. Keeley letter to Barbara Duke, Dept of Planning for Virginia Beach opposing a residential development. Raymond Firenze Comments to Virginia Beach Planning Commission re opposition to proposed development by Near Post, L.L.C. Raymond Firenze Comments to Virginia Beach Planning Commission opposing a residential development.

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX135 JX136 JX137 JX138 JX139 JX140 JX141 JX142 JX143 JX144 JX145 JX146 JX147 JX148 JX149

Date
09/00/1984 2/16/2005 00/00/0000 07/00/2004 00/00/0000 2/28/1998 5/22/2006 00/00/0000 11/18/2003 03/00/1998 03/00/1998 03/00/1998 9/19/2000 9/19/2000 9/20/2000

Description
Excerpts from Report by the Aircraft Environmental Support Office at the Naval Aviation Depot entitled, "Catalog of Noise Levels from Navy Aircraft." Sound Recording by Eddie Waterman of Aircraft Noise inside home located at 2244 Windy Pines Bend Photos of overflights by Plaintiff Capps. Overflight Video of 912 Carolina Avenue by Theodore Dingle. Photos of overflights by Plaintiff Capps. Excerpts pertaining to NAS Oceana and NALF Fentress from the FEIS for Realignment of F/A-18 C/D Aircraft and Operational Functions from Naval Air Station Cecil Field, Florida to other East Coast Installations Email from Steve Bryant to Kieron Quinn regarding number of FCLP and Touch and Go Operations in 1999 Map of Virginia Beach with Test Plaintiff and Non-Test Plaintiff Witness Designations. Excerpts from Captain Thomas Keeley Briefing to Virginia Beach City Council Members regarding AICUZ program. Sections 5.2-1 through 5.2-3 from Final EIS Table 5.2-16 from the Final EIS for the F/A-18 C/D Figure 5.2-4 from the Final EIS (EIS) for the F/A-18 C/D "ARS2 - Comparison of 1978 and Projected 1999 Average Annual Day Noise Contours for NAS Oceana" Email from Botto to Zusman with attached C/D v E/F downwind leg comparison Email from Botto to Long and Downing with attachment Email from Botto to Zusman with attached C/D v. E/F at '1000

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JOINT TRIAL EXHIBITS
Joint Trial Exhibit No.
JX150 JX151 JX152 JX153 JX154

Date
2/27/2001 3/29/2001 3/30/2001 4/3/2001 4/11/2001

Description
Email from Long to Craig with attachment, cc to Downing, Botto and Sharp Botto email to Zusman, Downing and Long with attachment Email from Botto to Sharp, Long and Downing with attachment Email from Botto to Downing with attached F18 C/D v. E/F spreadsheets Email from Botto to Zusman, Long and Downing with attachment

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Quinn, Gordon & Wolf, Chtd.
Kieron F. Quinn Richard S. Gordon Martin E. Wolf 102 W. Pennsylvania Ave, Suite 402 Towson, Maryland 21204 Telephone (410) 825-2300 Facsimile (410) 825-0066

_____

[email protected] [email protected] [email protected]

Harford County Office 104 Victory Lane, Suite 100 Bel Air, Maryland 21014

September 28, 2006

Steve Bryant, Esq. General Litigation Section Environmental and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044 Re: Dear Steve: The conference of counsel under Section 13.a of the Rules concerning exhibits in this case was scheduled and did take place on August 10, 2006, by telephone at your insistence. The evening before that conference, Defendant submitted an extraordinary list of 780 exhibits. Because we obviously could not deal with objections on August 10, at that time we rescheduled a discussion on objections alone on August 16th. That conference on objections is mandated by the Rules. Prior to that time we exchanged detailed objections and we certified to the Court that what was required by Section 13.d had been accomplished by the parties. Notwithstanding that, Plaintiffs spent a good part of August trying to correct a significant number of mistakes in Defendant's Exhibit List. All of Plaintiffs' objections to Defendant's exhibits and all of the Government's objections to Plaintiffs' exhibits were known and exchanged before September 7. On September 12 we sent you the Joint Exhibit List and heard not one comment or objection on it until last night. The Joint Exhibit List sent to you on September 12 contains 146 exhibits, many of which individually exceed 100 pages. These documents must have joint exhibit stickers affixed, a requisite number of copies made and put in loose-leaf binders, and then delivered to the Clerk and to Judge Wolski. That process is slow and it has started. The same process has to be done for the exhibits nominated by each party but which are not joint. Our clients have been waiting for a trial for five and one half years. Plaintiffs' counsel and staff are heavily engaged in preparing to put on Plaintiffs' case and we are not going to Testwuide v. United States ­ Exhibit Lists

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divert attention from that to take up the latest demonstration that the Government has no idea how to deal with its own documents. This afternoon we will send Judge Wolski a copy of Plaintiffs' Exhibit List with the Defendant's objections or non-objections depicted, as that document existed on September 12. On October 2 we will send the Court the Joint Exhibit List we sent you on September 12. We are not going to file the document that you sent last night in which you raised objections to your own exhibits and a number of objections to Plaintiffs' exhibits which had never been raised before. We understand that you believe Judge Wolski approved your last minute maneuver. If that is so, then that will have to be indicated by ruling on a motion made by the Government. On August 10, you requested that Plaintiffs' "as soon as possible" make a written demand for settlement. We put considerable time, thought and effort into that proposal and provided it to you on August 16. Since that time, on a half dozen occasions, you have told me that the Government "has the matter under serious consideration" and "expects to respond to the Plaintiffs very soon". As I told you when we spoke in my office on September 13, the Government settled the Vivian's Island case in early 2005 involving two squadrons of the very same aircraft that were transferred from Cecil Field to Beaufort, South Carolina. The Plaintiffs had appraisers ­ the Government had appraisers. The Plaintiffs had experts ­ the Government had experts. We believe that the analysis and the bureaucratic hurdle jumping that would attend the settlement of the present case were necessarily in place in early 2005 when the Government settled Vivian's Island. The Government's complete failure to respond after insisting that Plaintiffs act immediately is an insult and leads us to the sad but unanimous conclusion that the Government is not conducting this case in good faith. Sincerely,

Kieron F. Quinn KFQ/djs

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U.S. Department of Justice Environment and Natural Resources Division SDB 90-1-23-10297
Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Telephone (202) 305-0424 Facsimile (202) 305-0267

September 29, 2006 Via E-mail Kieron F. Quinn, Esquire Quinn, Gordon & Wolf 102 West Pennsylvania Avenue Suite 402 Baltimore, Maryland 21204 Re: Dear Kieron: This responds to the portion of your September 28, 2006 letter concerning the Joint Exhibit List. Your letter indicated that you intend to file a Joint Exhibit List with the Court on October 2 that contains documents that defendant explicitly objected to. Should you do so, we will move to strike those exhibits from your unilateral and erroneous list. Defendant will submit a joint exhibit list that reflects the documents that both parties agree are joint. During the status conference, on September 21, 2006, you proposed -- for the first time -that joint exhibits be admitted into evidence in the absence of a testifying witness. The parties never discussed those conditions, much less adopted them, prior to your proposal during the status conference. As I explained during the status conference, we then had to review the proposed joint exhibits based on these new conditions. We have now carefully reviewed the proposed joint exhibits with the new conditions, and stated our objections. Many of the objections relate to completeness. For example, many of our objections were qualified simply on plaintiffs agreeing that an entire document be designated a joint exhibit, rather than the limited portion of the document plaintiffs selected. Similarly, we would agree that the historical noise studies you selected from the 1970s and 1980s be joint exhibits, provided you agree that the remaining noise studies from that timeframe be joint exhibits as well. The same holds true for the Hornet and Super Hornet Environmental Impact Statements and accompanying noise studies and ATAC reports, to the extent that such Testwuide v. United States, 01-201

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documents are not already joint exhibits. The entirety of these documents should be made joint exhibits. Other objections were to exhibits defendant has not received or cannot identify based on the bates numbers plaintiffs cited. I am hopeful we can reach an agreement on these and other issues and submit a truly joint exhibit list that is equitable to both sides.

Sincerely,

s// Steven D. Bryant Steven D. Bryant

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PLAINTIFFS' HISTORY OF EXCHANGE OF EXHIBIT LISTS AND OBJECTIONS THERETO

Docdate
8/9/2006 8/9/2006

Doctitle
Defendant's Trial Exhibit List - 780 Exhibits Plaintiffs' Trial Exhibit List - 372 Exhibits

Comments
Per Court Order of 08.07.06 Per Court Order of 08.07.07 Regarding numerous "problem objections" by Plaintiff, including bates numbering, page numbers, documents not previously provided, etc. (Over 100 "problem objections")

8/16/2006

Letter Ferrebee to Bryant forwarding Plaintiffs objections and outlining problem objections

8/16/2006

Plaintiffs' Objections to Defendant's Trial Exhibits - 51 Page Spreadsheet of PRELIMINARY objections by Plaintiffs (see 08/18/06 letter from Quinn to Bryant regarding over 100 "problem objections") Per Rule 13.c Defendant's Objections to Plaintiffs' Trial Exhibits - 11 "Problem Objections"

8/16/2006

Per Rule 13.c

8/16/2006 *

Plaintiffs' Supplemental Trial Exhibit List

Resulting from documents produced by Defendant to Plaintiff per Court Order regarding production of non-privileged documents Regarding Plaintiffs' Preliminary "Problem Objections", only, of 08.16.06; additional objections forthcoming; numerous "Problem Objections", "Bates Number" issues, etc. Note: "We cannot begin the process of creating a joint exhibit list until these issues have been culled out and brought to your attention, in the hopes of resolving them."

8/18/2006

Email from Kieron Quinn to Bryant re problems with Defendant's Exhibit list Miller (Defendant's paralegal) letter to Ferrebee re Defendant's Exhibits - forwarding 08.18.06 disk (see below) - Docs never previously produced to Plaintiffs

8/18/2006

8/18/2006

Defendant spreadsheet for 08.18.06 disk of Defendant trial exhibits not previously produced

Spreadsheet purportedly reflecting images produced on disk by Defendant to Plaintiff of documents objected to by Plaintiff as never having been previously produced - over 70 documents

Note: "Problem Objections refer to issues including bates numbering changes, not previously produced documents, page number differences, etc.

Testwuide v. United States

Page 1 of 5

Case 1:01-cv-00201-VJW

Document 213-5

Filed 10/02/2006

Page 2 of 5
10/01/06

PLAINTIFFS' HISTORY OF EXCHANGE OF EXHIBIT LISTS AND OBJECTIONS THERETO

Docdate
8/21/2006

Doctitle
Email Bryant to Quinn referencing Defendant 08.18.06 disk and problem objections

Comments
Defendant promises to produce a single DVD of images of both "not produced" and "bates problems" objection exhibits. Providing exhibits to Defendant not previously produced AND addressing Defendant's objections of 8/21/06 AND providing a disk of documents previously produced by Defendant to Plaintiff in pdf format which Plaintiff converted to tiffs and shared with Defendant for use in their own database (with cross reference sheet of Plaintiffs' bates numbers)

8/21/2006

Letter Ferrebee to Bryant forwarding Plaintiffs trial exhibits not previously produced; Naval Aeronautical Organization disks and cross-reference sheet; and addressing Defendant problem objections to Plaintiffs trial exhibits

8/22/2006

Letter Ferrebee to Bryant regarding problem 08.18.06 disk from Defendant; requesting separate disk for problem bates number objections; forwarding spreadsheet reflecting additional problem objections for Defendant trial exhibits which are deposition exhibits

Defendant's 08.18.06 disk (see above) is completely inaccurate and needs to be redone; forwarding supplemental spreadsheet of additional "problem objections" by Plaintiff as to Defendant exhibits which are deposition exhibits

8/22/2006

Plaintiffs Spreadsheet - additional problem objections for deposition exhibits on Defendant trial exhibit list Email Bryant to Ferrebee responding to 08.21 and 08.22 letters re problem bates number objections, problem deposition exhibit objections, not previously produced docs Email from Ferrebee to Bryant regarding 081806 disk problems and confirmation regarding replacement disks Bryant's 2nd email to Ferrebee re Plaintiffs' Objections to Defendant's Trial Exhibits - confirming replacement disks Ferrebee's 2nd Email to Bryant re Plaintiffs' Objections to Defendant's Trial Exhibits re: further clarification for replacement disks required

Supplemental "problem objections" by Plaintiff to Defendant exhibits previously introduced deposition exhibits only 30 documents - regarding bates numbering, page numbers, etc.

8/24/2006

8/25/2006

8/25/2006

8/27/2006

Note: "Problem Objections refer to issues including bates numbering changes, not previously produced documents, page number differences, etc.

Testwuide v. United States

Page 2 of 5

Case 1:01-cv-00201-VJW

Document 213-5

Filed 10/02/2006

Page 3 of 5
10/01/06

PLAINTIFFS' HISTORY OF EXCHANGE OF EXHIBIT LISTS AND OBJECTIONS THERETO

Docdate

Doctitle
Defendant (Miller) Cover letter forwarding 2 disks - Not Provided Docs and Plaintiffs Bates Number Objections AND Defendant Objections / Duplicates to Plaintiffs Exhibits Defendant Spreadsheet w. disk -- Plaintiffs Not Previously Provided Objections Defendant Spreadsheet w. disk -- Plaintiffs Bates Number Objections Defendant Spreadsheet Objections / Duplicates to Plaintiffs Trial Exhibits Email Miller to Ferrebee forwarding Defendant Supplemental Exhibit List

Comments

8/29/2006

Over 150 documents

8/29/2006

8/29/2006

8/29/2006

Defendant objections regarding 13 duplicate documents by Plaintiff; 9 "problem objections"

8/29/2006

8/29/2006

Defendant Supplemental Exhibit List Email Quinn to Bryant and Spreadsheet of Defendant Exhs Still Not Provided to Plaintiffs

Newly listed Defendant trial exhibits which were previously produced in the case; untimely designations; 6 Defendant Supplemental Exhibits; 5 "Untimely Designation" objections by Plaintiffs, as well as additional objections

9/3/2006 *

Not provided by Defendant on 08.29.06 replacement disk

9/3/2006

Email Quinn to Bryant and Spreadsheet of Defendant Exhs "Not Previously Provided" but on 8.29.06 disk with Plaintiffs Objections

Re: documents provided for the first time on 08.29.06 replacement disk; Plaintiffs objections thereto Regarding previous 9 "problem objections" by Defendant; Plaintiffs still disputes problems in detail and requests certain documents be produced to Plaintiffs Plaintiffs resolve / withdraw 13 duplicate exhibits and 3 additional "problem objections"

9/3/2006 *

Email Quinn to Bryant and Spreadsheet of Plaintiffs Exhs with Defendant Objections - Still UnResolved Email Quinn to Bryant and Spreadsheet of Plaintiffs Exhs with Defendant Objections - Resolved

9/3/2006

Note: "Problem Objections refer to issues including bates numbering changes, not previously produced documents, page number differences, etc.

Testwuide v. United States

Page 3 of 5

Case 1:01-cv-00201-VJW

Document 213-5

Filed 10/02/2006

Page 4 of 5
10/01/06

PLAINTIFFS' HISTORY OF EXCHANGE OF EXHIBIT LISTS AND OBJECTIONS THERETO

Docdate
9/3/2006

Doctitle
Email Quinn to Bryant and Spreadsheet of Plaintiffs Objections to Defendant Supplemental Exhibits of 8.29.06

Comments

9/3/2006 *

Email Quinn to Bryant - resubmission of Spreadsheet of Plaintiffs Supplemental Exhibits of 08.16.06 with No Defendant Objections

Re-submission / reminder to Defendant of Plaintiffs 08.16.06 Supplemental Exhibit List to which Defendant has never objected NOTE: "We have been working on Defendant's exhibit lists since early August and are shifting our focus to trial presentation. Questions which remain unresolved will have to be resolved in an evidentiary setting at trial."

9/11/2006 *

Email Quinn to Bryant forwarding Plaintiffs Objections to Defendant Exhibits (see Spreadsheet descriptions below) Spreadsheet from Quinn - Plaintiffs' Bates Number Objections which STAND re Defendant's Exhibits Spreadsheet from Quinn - Plaintiffs' Bates Number Objections which are RESOLVED re Defendant's Exhibits

9/11/2006 *

9/11/2006

9/11/2006

Quinn Spreadsheet - Plaintiffs' Objections to Defendant's 9.1.06 Supplemental Exhibits

Regarding Defendant's 09.01.06 email designation of 2 additional (previously produced) trial exhibits (Untimely designations and additional objections by Plaintiffs) "The Joint Exhibit List that Plaintiffs will file with the Court will only include the first three fields . . . You can readily confirm how we identified which exhibits are joint."

9/12/2006 *

Email Quinn to Bryant forwarding Joint, Plaintiffs, Defendant Trial Exhibit Lists

9/11/2006 9/11/2006 * 9/11/2006 * 9/15/2006

Joint Exhibit List Spreadsheet by Plaintiffs sent to Bryant 09.12.06 Defendant's Trial Exhibits Spreadsheet sent to Bryant 09/12/06 Plaintiffs Trial Exhibits Spreadsheet sent to Bryant on 09/12/06 Email Quinn to Bryant with 09.15.06 Spreadsheets
Note: "Problem Objections refer to issues including bates numbering changes, not previously produced documents, page number differences, etc.

Testwuide v. United States

Page 4 of 5

Case 1:01-cv-00201-VJW

Document 213-5

Filed 10/02/2006

Page 5 of 5
10/01/06

PLAINTIFFS' HISTORY OF EXCHANGE OF EXHIBIT LISTS AND OBJECTIONS THERETO

Docdate
9/15/2006 * 9/15/2006

Doctitle
Plaintiffs Spreadsheet - Supplemental Trial Exhibit List Plaintiffs Spreadsheet - Withdrawn Plaintiffs' Trial Exhibits

Comments
Regarding documents produced per Court Order regarding Wyle documents Duplicate documents (2) withdrawn 16 days after receipt of Joint Exhibit List from Plaintiffs; received 8:15 pm on the evening before Plaintiffs and Defendant Trial Exhibit Lists are due to be filed

9/27/2006

Email Bryant to KQuinn - Defendant Objections to Plaintiffs, Defendant, Joint Exhibits

9/28/2006

Bryant Spreadsheet - Defendant Objections to Plaintiffs, Defendant, 53 page unformatted spreadsheet (93 new objections, including 33 and Joint Exhibits objections to Defendant's own exhibits)

9/28/2006

Bryant Sspreadsheet - Defendant Objections to Plaintiffs, Defendant, Reformatted spreadsheet created by Plaintiffs of Defendant and Joint Exhibits - Plaintiffs EXCEL RE-FORMATTED Version Objections to Plaintiffs, Defendant and Joint Exhibits - 16 pages

9/28/2006

Quinn Email forwarding Letter to Bryant - response to Defendant Objections to Plaintiffs, Defendant, and Joint Exhibits, Settlement Quinn Letter to Bryant - response to Defendant Objections to Plaintiffs, Defendant, Joint Exhibits, Settlement Bryant Letter to Quinn - reply to Quinn 09/28/06 Letter

9/28/2006 9/29/2006

Plaintiffs refuse to accept untimely objections

*

Defendant has made no response as of 10/02/2006

Note: "Problem Objections refer to issues including bates numbering changes, not previously produced documents, page number differences, etc.

Testwuide v. United States

Page 5 of 5