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

Case 1:96-cv-00408-LAS

Document 167

Filed 05/05/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ INNOVAIR AVIATION LIMITED, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

DOCKET NO. 96-408C (Senior Judge Loren A. Smith)

PLAINTIFF INNOVAIR AVIATION LIMITED'S RESPONSE TO DEFENDANTS' MOTION FOR LEAVE TO AMEND EXHIBIT A AND DEFENDANT'S POST-TRIAL APPENDIX Plaintiff Innovair Aviation Limited ("Innovair") hereby respectfully submits this response to Defendant's Motion for Leave to Amend Exhibit A and Defendant's Post-Trial Appendix. The government submits that its proposed amendments to its "Exhibit A" and its post-trial appendix are corrective of typographical and clerical errors. Innovair has no objection to such corrections. However, as explained in Innovair's Post-Trial Reply brief, Innovair strenuously objects to the characterization of the government's attachment as an "exhibit" and as a "summary" of evidence. See D.E. No. 161, Innovair's Reply In Further Support of Post-Trial Brief Pursuant to the Court's Order Dated November 2, 2007 at 15-16. The government's so-called "Exhibit A" is titled "Summary of Innovair's Alleged Sales Opportunities." Despite the government's nomenclature, this writing is neither a proper exhibit nor an admissible summary of evidence under Federal Rule of Evidence 1006. On the contrary, as the government's current motion admits, "Exhibit A" was prepared by counsel in connection with drafting the government's post-trial brief, and it is merely argument of counsel

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Case 1:96-cv-00408-LAS

Document 167

Filed 05/05/2008

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embodied in an abbreviated chart appended to its brief rather than presented within the text of the brief itself. Although the government's "Exhibit A" purports to summarize evidence of record, it falls far afield of the requirements for a summary of evidence under Federal Rule of Evidence 1006. Under Rule 1006, "[f]or a summary of evidence to be admissible . . , the proponent must lay a proper foundation by establishing that" (1) the summarized evidence is voluminous, (2) the underlying evidence is admissible, (3) the documents summarized were made available to the opposing party, and (4) the proposed summary "accurately summarizes the underlying documents and only the underlying documents." Bannum, Inc. v. United States, 59 Fed. Cl. 241, 244-45 (Fed. Cl. 2003) (quoting Bath Iron Works Corp. v. United States, 34 Fed Cl. 218, 232-33 (1995), aff'd, 98 F.3d 1357 (Fed. Cir. 1996)) (emphasis added). Here, the government laid no foundation for the use of a summary of evidence, and "Exhibit A" would not meet the criteria in any case. Most critically, as we discussed in some detail in Innovair's post-trial reply brief, "Exhibit A" does not summarize the cited materials accurately, and it presents the government's subjective contentions about the allegedly summarized materials. See D.E. No. 161, Innovair's Reply In Further Support of Post-Trial Brief Pursuant to the Court's Order Dated November 2, 2007 at 15-20. For all these reasons, the Court should either strike the government's "Exhibit A" or, at a minimum, treat it as mere argument of counsel.

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Case 1:96-cv-00408-LAS

Document 167

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Respectfully submitted, s/Ty Cobb_________________________ Ty Cobb HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiff Innovair Aviation Limited Of Counsel: H. Christopher Bartolomucci Audrey E. Moog HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5810 (202) 637-5910 (facsimile) Dated: May 5, 2008

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Case 1:96-cv-00408-LAS

Document 167

Filed 05/05/2008

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CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 2008, I filed the foregoing Plaintiff Innovair Aviation Limited's Response to Defendant's Motion for Leave to Amend Exhibit A and Defendant's Post-Trial Appendix using the Court of Federal Claims' Electronic Court Filing system, which automatically caused notice to be sent to counsel of record for the parties. s/Ty Cobb_________________________ Ty Cobb Counsel for Innovair Aviation Limited

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