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

Case 1:96-cv-00408-LAS

Document 134

Filed 10/03/2007

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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 OPPOSITION TO DEFENDANT'S MOTION FOR AUTHORIZATION OF SERVICE OF SUBPOENAS MORE THAN 100 MILES FROM THE PLACE OF TRIAL Plaintiff Innovair Aviation Limited ("Innovair") respectfully opposes the Government's motion for authorization to serve subpoenas on a number of the Government's expected trial witnesses. In many cases, the live testimony of these individuals would be (1) irrelevant to the value of the Technology License Agreement ("TLA"), (2) cumulative, and (3) the least efficient means of presenting the testimony to the Court. If the Government's motion were granted, it would unduly burden the personal and professional lives of numerous third parties while also unnecessarily burdening the Court with an overlong trial. Certain of the witnesses for whom subpoenas are sought would not provide testimony relevant to the issue at trial, the value of Innovair's TLA ­ the exclusive license to, inter alia, distribute technology for the converted DC-3 aircraft

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Case 1:96-cv-00408-LAS

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outside the United States. Randy Myers' testimony "about the process of converting the DC-3 aircraft to the BT-67 . . . [and] any technical issues relating to the BT-67 conversion effort," Ex. 1, Defendant's Witness List at 4, would not be likely to assist the Court in determining the value of the TLA. Similarly, testimony by Michael Hintze, a former controller of Basler Turbo Conversions ("BTC"), about "BTC's financial condition and BTC's efforts to obtaining [sic] financing" is not relevant to the value of the TLA. See id. at 5. Ray Stone was an in-house attorney with United Technologies Corporation ("UTC"). See id. The Government has indicated that he will testify about the agreements he drafted between UTC, Innovair, and BTC. See id. These unambiguous agreements speak for themselves and thus Stone's testimony would in all probability be inadmissible parol evidence and unnecessary. See, e.g., Polygram Holding, Inc. v. Calfaro, 839 N.Y.S.2d 493, 493 (App. Div. 2007) ("Absent fraud or mutual mistake, the parol evidence rule precludes a party from offering evidence to contradict or modify an unambiguous contract."); W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990) ("Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing."). Thomas Fraker, formerly of Warwick Consulting Group, and David Thompson, of Deloitte & Touche LLP, each has only a tangential connection to the relevant facts, each has recorded his professional work in documents that will be exhibits in this matter, and each has provided deposition testimony in connection

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with his work on behalf of Innovair. To the extent that the exhibits alone do not provide the facts the Government wishes to establish through these witnesses, it is probable that, rather than require one or both to appear at trial, the parties could designate deposition testimony and/or agree to stipulated facts concerning these witnesses. Thomas Weigt, President of BTC, is responsible for running the operations of a leanly staffed business in Oshkosh, Wisconsin. He has been deposed several times in connection with the Innovair/BTC relationship and business operations. Based on this record, it should be possible for the parties to use deposition designations and/or stipulations in lieu of live testimony. Fred Johnson, formerly of UTC, currently owns and runs his own consulting firm from his home near Nashville, Tennessee. While he has some knowledge about UTC's involvement with the BT-67 distribution program, to the extent he recalls specific facts, it is beyond dispute that UTC continued its program to launch a distributorship for the BT-67 well after the taking occurred, even in the absence of Innovair, its distribution partner. Thus, Mr. Johnson's testimony is likely to have little relevance to the issue at trial. In sum, to the extent the witnesses for whom the Government seeks subpoenas have relevant testimony to offer, their testimony could be presented to the Court through far more efficient means than by requiring them to travel hundreds or even thousands of miles. It may be possible for the parties to stipulate to the facts to which these witnesses would testify or to agree on the designation of

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certain portions of deposition transcripts. To date, the Government has not requested Innovair's consent to either of these time-saving measures, though counsel for the parties have scheduled a meeting for Tuesday, October 9, to discuss matters which might encompass some of these questions. CONCLUSION The Government's request would burden the Court with an unnecessarily long trial and irrelevant or cumulative testimony. Accordingly, this Court should deny Defendant's motion for the authorization of service of subpoenas. 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: October 3, 2007

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of October, 2007, I filed the foregoing Plaintiff Innovair Aviation Limited's Opposition to Defendant's Motion for Authorization of Service of Subpoenas More than 100 Miles From the Place of Trial 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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