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

Case 1:95-cv-00650-LSM

Document 105

Filed 11/30/2007

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALFRED ALOISI, et al., Plaintiffs v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 95-650L Hon. Lawrence S. Margolis

MOTION TO COMPEL THE APPEARANCE OF PLAINTIFFS ENERGEL, INC. AND DYNATECH CORPORATION AT DEPOSITION Pursuant to Rule 37 of the Rules of the United States Court of Federal Claims (RCFC), Defendant hereby moves for an order compelling Plaintiffs Energel, Inc. ("Energel") and Dynatech Corporation ("Dynatech") to make a designation under RCFC 30(b)(6) and appear at deposition.1/ If Plaintiffs are unable to designate an individual to testify on behalf of these corporate Plaintiffs, the United States respectfully requests that the Court dismiss Energel and Dynatech pursuant to RCFC 37. See RCFC 37(d). Counsel for the United States has made good faith efforts to resolve this matter informally with Plaintiffs' counsel, without success. See RCFC 37(a)(2)(C). On October 15, 2007, Defendant issued notices of the depositions of Plaintiffs Energel and Dynatech pursuant to RCFC 30(b)(6).2/ See Notice of Deposition of Energel, Inc. (attached

Defendant also noticed the deposition of Plaintiff James Kendle, whom Plaintiff's counsel apparently was unable to locate until recently. See Ex. E. Defendant is hopeful that Mr. Kendle will appear at a deposition voluntarily, but will soon seek an order to compel Mr. Kendle to appear if he declines. Additionally, Plaintiff's counsel recently indicated that Mr. Kendle may seek to be voluntarily dismissed from this action, but Defendant is entitled to depose Mr. Kendle and will oppose his dismissal until after the government obtains his deposition. Although the depositions of Energel and Dynatech were initially set for October 24, 2007, in Yreka, California, by agreement among counsel, depositions of available witnesses including certain former and current Forest Service personnel and Plaintiff Alfred Aloisi, among others, were held in Yreka, California during the week of October 29, 2007. No corporate designee(s) were identified who could speak for either corporation at a Rule 30(b)(6) deposition in Yreka.
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Document 105

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as Ex. A); see also Notice of Deposition of Dynatech Corp. (attached as Ex. B). Each notice identified the subject matter for deposition. See Exs. A & B. Plaintiffs' counsel informed counsel for Defendant that no witnesses were available, apparently due to the death of Plaintiff Donald Goodman (see Suggestion of Death of Plaintiff Donald W. Goodman, filed Nov. 20, 2007), who was the President of both entities. See Complaint, ¶ 6. Despite Defendant's several attempts to resolve this issue, Plaintiffs have been unable to designate a person to testify on behalf of either corporate Plaintiff. It appears that Plaintiffs will be unable to designate a RCFC 30(b)(6) witness for Energel or Dynatech. Both Energel and Dynatech appear to no longer be active entities within their respective states of incorporation. See Status Report for Energel, Inc., State of Delaware, Div. of Corporations, Nov. 20, 2007 (attached as Ex. C); see also Business Entity Status Report for Dynatech Corporation, New Jersey State Business Gateway Service, Nov. 20, 2007 (attached as Ex. D). As of May 8, 2004, Energel's status was "forfeited" for failing to appoint a registered agent. See Ex. C. Dynatech's status as of May 5, 2005 was "revoked for not filing [an] annual report for 2 consecutive years." See Ex. D. That neither entity is a going concern further suggests that neither party will be able to identify a witness with knowledge of the subject matter identified for deposition. Plaintiffs' failure to identify a RCFC 30(b)(6) witness is grounds for dismissal pursuant to Rule 37, as well as other sanctions. See RCFC 37(d) (stating that if a party designated under RCFC 30(b)(6) fails to appear at a deposition after being served with a proper notice, the court may "make such orders in regard to the failure as are just"); see also Colbert v. United States, 30 Fed. Cl. 95, 98-100 (1993) (dismissal is a proper remedy where a party fails to respond to discovery). Moreover, no lesser sanction would apply in this situation where no one is available

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Document 105

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who has knowledge of the subject matter identified for deposition due to the death of the companies' President, Donald Goodman. Defendant's counsel certifies that prior to bringing this motion, he conferred with Plaintiffs' counsel on several occasions regarding the depositions of Energel and Dynatech. First, after issuing the deposition notices on October 15, 2007, counsel for the parties discussed the unavailability of a witness for each of these entities when scheduling depositions to be taken during the week of October 29, 2007 in Yreka, California. See E-mail thread between Bruce Trauben and Lawrence McBride, Oct. 25, 2007 (attached as Ex. E); see also Joint Motion to Modify the Scheduling Order, filed Nov. 16, 2007. After the depositions were completed in Yreka, Plaintiffs' counsel wrote to defense counsel indicating that he was trying to arrange witnesses for the other depositions noticed by Defendant. See E-mail and Letter from Lawrence McBride to Bruce Trauben, Nov. 5, 2007 (attached as Ex. F). In response, counsel for the government indicated Defendant's continuing interest in deposing a corporate designee of both Energel and Dynatech. See E-mail from Bruce Trauben to Lawrence McBride, Nov. 6, 2007 (attached as Ex. G). On November 9, 2007, counsel for Defendant wrote to Plaintiffs' counsel to suggest that Energel and Dynatech should be dismissed from this action, "if there no longer is someone who can speak or act on [their] behalf." See Letter from Bruce Trauben to Lawrence McBride, Nov. 9, 2007, with Nov. 9, 2007 E-mail attached (attached as Ex. H). Plaintiffs' counsel did not respond to Defendant's suggestion. Counsel for Defendant again brought the lack of corporate designees for Energel and Dynatech to Plaintiffs' counsel's attention on November 19, 2007, suggesting that the Court may need to become involved. See E-mail from Bruce Trauben to Lawrence McBride, Nov. 19, 2007 (attached as Ex. I). That e-mail did not elicit an immediate response from Plaintiffs' counsel. On November 20, 2007, counsel for Defendant wrote to -3-

Case 1:95-cv-00650-LSM

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Plaintiffs' counsel indicating the government's intent to bring this motion. See E-mail from Bruce Trauben to Lawrence McBride, Nov. 20, 2007 (attached as Ex. J). Counsel for Defendant also left a voice mail message for Plaintiffs' counsel on November 20, 2007 regarding this motion. After the Thanksgiving Holiday, Plaintiffs' counsel responded on November 26, 2007, indicating that he has been working with (deceased) Plaintiff Donald Goodman's accountant, Mr. Finkelstein, to locate someone who could speak for the corporate Plaintiffs. See E-mail from Lawrence McBride to Bruce Trauben, Nov. 26, 2007 (attached as Ex. K). Defense counsel verbally informed Plaintiffs' counsel that the government would wait until Friday, November 30th, to file this motion. To date, approximately six weeks after the depositions were noticed, Plaintiffs have not identified any individual who can represent Energel or Dynatech at deposition, forcing Defendant to file this motion. The Court should therefore issue an Order compelling Energel and Dynatech to produce at deposition witnesses with knowledge of the subject matter identified in the respective deposition notices. If they cannot do so, then dismissal is warranted under Rule 37. Dated: November 30, 2007 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division s/ Bruce K. Trauben BRUCE K. TRAUBEN Natural Resources Section Environment and Natural Resources Division U. S. Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 (202) 305-0238 (ph) (202) 305-0267 (fax) Attorney for Defendant

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Case 1:95-cv-00650-LSM

Document 105

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Of Counsel: William Shapiro Natural Resources Section Environment and Natural Resources Div. U.S. Department of Justice 501 I Street, Suite 9-700 Sacramento, CA 95814-2322 (916) 930-2207 Rose Miksovsky, Esq. Office of General Counsel U.S. Department of Agriculture 33 New Montgomery St., 17th Fl. San Francisco, CA 94105-3170

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Case 1:95-cv-00650-LSM

Document 105-2

Filed 11/30/2007

Page 1 of 4

EXHIBIT A

Case 1:95-cv-00650-LSM

Document 105-2

Filed 11/30/2007

Page 2 of 4

IN THE ALFRED ALOISI

UND STATES COURT OF FEDERA

CLAIS

et aI.

Plaintiffs
. v.

No. 95- 650L

UNITED STATES OF AMERICA
Defendant.

Hon. Lawrence S. Margolis

NOTICE OF DEPOSmON OF ENERGEL , INC.

PLEASE TAKE NOTICE that , pursuant to CFC Rule 30(b)(6) and the Scheduling Order

entered in this action , on Wednesday, October 24 2007 , Defendant shall take the deposition of a

designee , or designees , of Plaintiff Energel , Inc. , commencing at 1:00 p.

, and contmuing until

completed , at the offices of the Forest Supervisor , Klamath National Forest, 1312 Fairlane Road
Yreka , CA 96097 , (530) 841- 4483 , or at another date , tine and location as agreed upon by the

parties , to be taken under oath before a duly authorized notary public and/or reporter. Energel

Inc. shall produce for deposition a representative or representatives with knowledge of the
subject matter identified in Attachment A to this Notice.
Dated: October 15 ,

2007

Respectfully submitted

BR K. TRA BEN Natural Resources Section Environment and Natural Resources Division U. S. Department of Justice P. O. Box 663 Washington , D. C. 20044- 0663 (202) 305- 0238 (ph) (202) 305- 0267 (fax) Attorney for Defendant

,"

Case 1:95-cv-00650-LSM

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ATTACHMENT A SUBJECT MATTER FOR DEPOSITION
Pursuant to CFC Rule 30(b)(6), please produce for deposition a corporate designee who is knowledgeable regarding the subject matter described below. If no one individual possesses sufficient knowledge regarding all of the subjects identified , below, then please designate as many representatives as is necessary to address each topic. The " Company " or " Corporation refers to the Plaintiff identified in the accompanying notice of deposition. The phrase Mining Claims " shall be interpreted broadly to include the mining claims identified in the Complaint any patented mine or mil sites identified in the Complaint, and any mining activities at such mining claims and/or patented mine or mil sites.
Corporate history, governance, and field(s) of business , including but not limited to the it's officers , directors , shareholders , managers employees , services and/or products;
formation and mission ofthe corporation ,

Company s experience or involvement in mining in general , and in gold mining in

paricular;
Ownership interest in the propert or propert interests identified in the Complaint including but not limited to the company s ownership interest in the Mining Claims;
The Company s investment- backed expectations with respect to the Mining Claims

including but not limited to the Company s investment in , of contribution to , the Mining Claims , and the Company s expected retus on its investment or contribution;
The Company s income , gains or losses associated with the Mining Claims;

Any proposed , planned , and/or conducted mining activities at the Mining Claims;

Any economic impact on the Company allegedly resulting from Forest Service consultations with the Fish & Wildlife Service with respect to the Northern Spotted Owl as alleged in the Complaint;
Any leases , or attempts to lease, any of the Mining Claims, and any rents or royalties;

Any equipment or other materials provided to , or by, the Company for use at the Mining Claims;
10.

Any loans , loan guaantees or other financial assistance provided to , or for the use of, any company or individual with respect to the Mining Claims;
The Company s knowledge with respect to the Northern Spotted Owl; and

II.
12.

The Plaintiffs ' documents produced in this action Aloisi v. United States CFC No. 95650L , and/or the Contest previously pending before the U. S. DOl's Office of Hearings and Appeals United States v. Aloisi CACA 41272.

Case 1:95-cv-00650-LSM

Document 105-2

Filed 11/30/2007

Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of October , 2007 , a true and correct copy ofthe

foregoing Notice of Deposition of Energel , Inc. was sent electronically and via Federal Express

with charges biled to Defendant , to counsel of record for Plaintiffs at the following address:
Lawrence G. McBride , Esq. Foley & Lardner LLP Washington Harbour 3000 K St. , N. , Suite 500 Washington, DC 20007 e-mail: lmcbride foley. com

ce K. Trau en

Case 1:95-cv-00650-LSM

Document 105-3

Filed 11/30/2007

Page 1 of 4

EXHIBIT B

Case 1:95-cv-00650-LSM

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Filed 11/30/2007

Page 2 of 4

IN THE
ALFRED ALOISI

UND STATES COURT OF FEDERA

CLAIS

et aI.

Plaintiffs
No. 95- 650L

UNITED STATES OF AMERICA
Defendant.

Hon. Lawrence S. Margolis

NOTICE OF DEPOSmON OF DYNATECH CORP.

PLEASE TAKE NOTICE that , pursuant to CFC Rule 30(b)(6) and the Scheduling Order

entered in this action , on Wednesday, October 24 , 2007 , Defendant shall take the deposition of a
designee , or designees , of Plaintiff Dynatech Corp. , commencing at 3:00 p. , and continuing

until completed , at the offices of the Forest Supervisor, Klamath National Forest , 1312 Fairlane
Road , Yreka , CA 96097 , (530) 841- 4483 , or at another-date , time and location as agreed upon by

theparties , to be taken under oath before a duly authorized notary public and/or reporter.
Dynatech Corp. shall produce for deposition a representative or representatives with knowledge
of the subject matter identified in Attachment A to this Notice.
Dated: October 15 ,

2007

Respectfully submitted

BR E K. TRA BEN
Natural Resources Section Environment and Natural Resources Division U. S. Deparment of Justice P. O. Box 663 Washington , D. C. 20044- 0663 (202) 305- 0238 (ph) (202) 305- 0267 (fax) Attorney for Defendant

Case 1:95-cv-00650-LSM

Document 105-3

Filed 11/30/2007

Page 3 of 4

ATTACHMENT A
SUBJECT MATTER FOR DEPOSITION
Pursuant to CFC Rule 30(b)(6), please produce for deposition a corporate designee who is knowledgeable regarding the subject matter described below. If no one individual possesses sufficient knowledge regarding all of the subjects identified , below , then please designate as many representatives as is necessary to address each topic. The " Company" or " Corporation refers to the Plaintiff identified in the accompanying notice of deposition. The phrase Mining Claims " shall be interpreted broadly to include the mining claims identified in the Complaint any patented mine or mil sites identified in the Complaint , and any mining activities at such mining claims and/or patented mine or mill sites.
Corporate history, governance , and field(s) of business , including but not limited to the formation and mission of the corporation , it' s offcers , directors , shareholders , managers employees , services and/or products;
Company s experience or involvement in mining in general , and in gold mining in particular;

Ownership interest in the propert or propert interests identified in the Complaint including but not limited to the company s ownership interest in the Mining Claims;
The Company s investment- backed expectations with respect to the Mining Claims

including but not limited to the Company s investment in , or contribution to , the Mining Claims , and the Company s expected returns on its investment or contribution;
The Company s income , gains or losses associated with the Mining Claims;

Any proposed , planed , and/or conducted mining activities at the Mining Claims; Any economic impact on the Company allegedly resulting ITom Forest Service consultations with the Fish & Wildlife Service with respect to the Northern Spotted Owl as alleged in the Complaint;
Any leases , or attempts to lease , any of the Mining Claims , and any rents or royalties;

Any equipment or other materials provided to , or by, the Company for use at the Mining Claims;
10.

Any loans , loan guantees or other financial assistance provided to , or for the use of, any company or individual with respect to the Mining Claims;
The Company s knowledge with respect to the Northern Spotted Owl; and

II.
12.

The Plaintiffs ' documents produced in this action Aloisi v. United States CFC No. 95650L , and/or the Contest previously pending before the U. S. DOl's Offce of Hearings and Appeals United States v. Aloisi CACA 41272.

~~~
Case 1:95-cv-00650-LSM Document 105-3 Filed 11/30/2007 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of October , 2007 , a true and correct copy of the

foregoing Notice of Deposition of Dynatech Corp. was sent electronically and via Federal
Express , with charges biled to Defendant, to counsel of record for Plaintiffs at the following
address:

Lawrence G. McBride , Esq. Foley & Lardner LLP Washington Harbour 3000 K St. , N. , Suite 500 Washington, DC 20007 e-mail: lmcbride foley. com

ce K. Tra

Case 1:95-cv-00650-LSM

Document 105-4

Filed 11/30/2007

Page 1 of 5

EXHIBIT C

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Divis on of Corporations - Online Services Case 1:95-cv-00650-LSM Document 105-4
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Filed 11/30/2007

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State, of Delaware - Field Descriptions

Case 1:95-cv-00650-LSM

Document 105-4

Filed 11/30/2007

Page 1 of3 Page 3 of 5

Field Definitions
FILING HISTORY NUM OF PAGES
This is the number of pages that complete the legal document filed.
ENTITY TYPE
A B General Bank

- Type General refers to a legal entity with no special attributes such as non profit or religious.

- Bank refers to the entity actually existing as a Bank and conducting banking business. C - Closed Corp - (a) A close corporation is a corporation organized under subchapter 342 whose certificate of incorporation contains the provisions required by Section 102 of this title and , in addition , provides that:
(1) All of the corporation s issued stock of all classes , exclusive of treasury shares, shall be represented by certificates and shall be held of record by not more than a specified number of persons, not exceeding 30; and

(2) All of the issued stock of all classes shall be subject to 1 or more of the restrictions on transfer permitted by

Section 202 of this title; and
(3) The corporation shall make no offering of any of its stock of any class which would constitute a " public offering c. Section 77a et seq. 1 as it may be amended from time to time.
within the meaning of the United States Securities Act of 1933 715 U.

(b) The certificate of incorporation of a close corporation may set forth the qualifications of stockholders , either by specifying classes of persons who shall be entitled to be holders of record of stock of any class, or by specifying classes of persons who shall not be entitled to be holders of stock of any class or both.

(c) For purposes of determining the number of holders of record of the stock of a close corporation , stock which is
held in joint or common tenancy or by the entireties shall be treated as held by 1 stockholder.
D DISC Corp - Domestic International Sales Corporation A domestic corporation meeting certain conditions pursuant to federal Internal Revenue Service codes. For more information please visit www. irs. gov and search

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- (1) The term " professional service " shall mean any type of personal service to the public which requires as a condition precedent to the rendering of the service the obtaining of a license or other legal authorization , and which , by reason of law , prior to June 7 , 1969 , could not be performed by a corporation. In addition , and by way of example without limiting the generality thereof , the personal services which come within this chapter are the personal services rendered by architects , certified or other public accountants , chiropodists chiropractors, doctors of dentistry, doctors of medicine , optometrists , osteopaths, professional engineers veterinarians, and, subject to the Rules of the Supreme Court , attorneys- at- law.
F - Professional Association

(2) The term " professional corporation " means a corporation which is organized , under this chapter, for the sole and specific 'purpose of rendering professional service , and which has as its shareholders only individuals who themselves are duly licensed or otherwise legally authorized within this State to render the same professional service as the

corporation.

- Partnership " means an association of two or more persons formed under Section 15- 202 General Partnership of this title, predecessor law or comparable law of another jurisdiction to carryon any business , purpose or activity.
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6 DEL.C. 9 15- 1001.
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8 - This refers to an entity that is not regarded as a general corporation pursuant to Title 8.

Non- profit or Religious - This description type refersto a corporation that sets forth in it' s certificate of incorporation or subsequent documents that it is a non- profi corporation. The " Religious " literal does not infer that in every case, the corporation is for Religious purposes only. The intent is to define the corporation as Non- Profit
R -

charitable corporation which maybe formed for Religious purposes.
S - Stock, Non-taxable

- This description is to define the corporation as a stock corporation that is not required to pay an annual franchise tax as defined in the Delaware Code. An example may be a corporation that has authorized

stock but is formed for charitable purposes.
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The type of legal document filed with the Division.

ENTITY KIND

As defined by Delaware Code , Titles 8 ,

6 , 12, 15

, an entity may be one of the following:

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11/2012007

State of Delaware - Field Descriptions
Corporation
Limited Partnership

Case 1:95-cv-00650-LSM

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Filed 11/30/2007

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Limited Liability Company Statutory Trust Partnership (whether General or Limited Liability Partnership) Unincorporated Non- Profit Association
STATUS

All entities formed in Delaware whether active or inactive are defined with a particular status. They are defined as such:
A Good Standing

- The entity s existence has not been terminated either voluntarily or administratively.

C - Cancelled

- A certificate of Cancellation has been voluntarily filed by the entity to terminate its existence. This
- A certificate of Dissolution has been voluntarily filed by the corporation to terminate its legal

certificate is filed when an entity has dissolved and at the completion of winding up the entity.
D Dissolved

existence.
E - Expired - A Limited Liability Partnership or Limited Liability Limited Partnership has not filed their annual report in a timely manner. A reinstatement and all Annual Reports that have not been filed , may be filed to reinstate the LLP or LLLP to good standing status. Refer to Title 6 , Chapter 15Sectionl003.

F - Forfeited

- A corporation has on record a Certificate of Resignation of registered agent and the appointment of a

new registered age nt was not filed within the designated period of 30 days.
G - Resign to Appointment - An Unincorporated Non- Profit Association filed pursuant to Title 6, Chapter 19 may appoint an agent to receive service of process. If such agent resigns from this appointment the entity would show this status.

J - Cancelled-Voided

- A Limited Partnership, Limited Liability Company or Partnership failed to pay their annual

tax for a period of 3 years from the date it is due.
L - Consolidated - A Certificate of Merger and Consolidation has been filed. The existence of this entity has terminated and a new entity has been created as a result of the filing. M - Merged - A Certificate of Merger between 1 or more entities has been filed. This entity did not survive the merger but was merged into another entity. N - Converted - A Certificate of Conversion has been filed. This entity has been converted to an entity that is in existence in another jurisdiction. P - Revoked - A Limited Liability Partnership (LLP) that has not filed their Annual Report. The Statement of Qualification or Statement of Foreign Qualification of the LLP has been revoked by the Secretary of State. R - Forfeited-Resigned - A Limited Partnership, Limited Liability Company or Partnership that has on record a Certificate of Resignation of registered agent and the appointment of a new registered agent was not filed within the designated period of 30 days.

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- A Certificate of Voluntary Dissolution before issuance of shares or before beginning of business has been filed with the Division of Corporations.

T - Transfer - A Certificate of Transfer has been filed and the result of such transfer is the cessation of its existence as an entity of the State of Delaware. Void - A corporation that failed to pay it' s annual franchise tax for a period of 1 year or a Foreign Corporation that has not filed their annual reports within a 2 year period. Withdrawal - A voluntary Certificate of Withdrawal has been filed by the Corporation which is registered/qualified to do business in Delaware as a Foreign Corporation but domestic in another jurisdiction , to

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terminate it' s
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FILING HISTORY DOC CODE

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11120/2007

State- of Delaware - Field Descriptions

Case 1:95-cv-00650-LSM

Document 105-4

Filed 11/30/2007

Page 3 of3 Page 5 of 5

This code is used to enter the filing on our database and indicates the type of filing.
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Every corporation shall have and maintain in this State a registered agent in each case , having a business office which generally is open during normal business hours to accept service of process and otherwise perform the functions of a registered agent. Such agent may be an individual or business entity authorized to transact business in the State of Delaware. The data presented in this field denotes the agent name , address and phone number of such agent for the entity you are viewing.

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TOTAL AUTHORIZED SHARES
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11/20/2007

Case 1:95-cv-00650-LSM

Document 105-5

Filed 11/30/2007

Page 1 of 3

EXHIBIT D

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NJ Business Entity Status Reports Case 1:95-cv-00650-LSM
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Document 105-5

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Corporate and Business Information Reporting

Business Entity Status Report
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As "

functior

Status Report For: DYNATECH, CORPORATION

Business Name: DYNATECH, CORPORATION Business ID Number: 0100158464

Report Date: 11/20/2007
Transaction Number: Sequence: 1215992: 1

Business Type: DOMESTIC PROFIT CORPORATION

St us: CONSECUTIVE YEARS a t REVOKED FOR NOT FILING ANNUAL REPORT FOR 2
Filing Date: 01/12/1982
Status Change Date: DOR Suspension Start Date: 05/05/2005 Tax Suspension Start Date:

Home Jurisdiction: Stock Amount: 2500
DOR Suspension End Date:

Tax Suspension End Date:

Annual Report Month: 1 Last Annual Report Filed: 01/20/1999
For Last Annual Report Paid Year: 1999

Incorporator: CATHERINE E. ALLEN Agent: DONALD W GOODMAN
Agent Address: 6 HORIZON ROAD 2307
FORT LEE ,

NJ 07024 - 0000

Office Address Status: Undeliverable
Main Business Address: 6 HORIZON RD #2307

FORT LEE, NJ

07024 07024

Principal Business Address: 6 HORIZON RD #2307
FORT LEE, NJ

Associated Names
Name: DYNATECH , CORPORATION Name: VOLTAIRE, INC.

Type Description: Fictitious Name Type Description: Previous Name

https:/ /ww. accessnet.state. nj. us/BEStatRpt.asp

11/2012007

,-,
NJ Business Entity Status Reports Case 1:95-cv-00650-LSM

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Document 105-5

Filed 11/30/2007
_..".u..:-

Page 2 of2 Page 3 of 3
c--

Officers/ Directors/ Members 1) Title: PRESIDENT Name: DONALD GOODMAN Address: 6 HORIZON RD 2307
FORT LEE, NJ 07024

2) Title:
Name:

SECRETARY

DONALD GOODMAN

Address:

41 W. PALISADES BLVD.
PALISADES PARK, NJ 07650

\.Exit"

l.Retll

r:

t.toilil1l.ist

**If you would like to receive photocopies of documents filed by this business entity, mail your request to PO Box Trenton , NJ 08625. Indicate the Business Entity Number(s) involved and the type of document you wish to have
of. Your choices are listed below:
CHARTER DOCUMENTS

Original Certificate Only (For example , Certificate of Incorporation);
Changes and Amendments to the Original Certificate Only;

All Charter Documents (Original Certificate and Changes/Amendments)

And/or
ANNUAL REPORTS
Copy of Latest Annual Report;

Copy of Annual Report for a Specific Year(s) (List the Year Desired)
The photocopy fee for all entities except limited liability companies is $1 per page. For limited liability companies, the fee i for the first page and $2 per page thereafter.

The total fee amount for your order will vary depending on the number of pages associated with each filed docum you request. You may supply us with a check with a NOT TO EXCEED instruction to cover the costs. Make the che( payable to the Treasurer , State of New Jersey. Alternately, you may pay by credit card (provide card#/expiration

and cardholder information) or depository account. Please include a self- addressed envelope with your order. If
have any questions or would like information on alternative service options such as over-the- counter
expedited

service , call 609- 292- 9292 (option 3 on the main menu and then option 8), weekdays , 8:30 a. m. to 4:30 p.
Privacy Policy

https:/ /ww. accessnet.state. nj. us/BEStatRpt.asp

11/2012007

Case 1:95-cv-00650-LSM

Document 105-6

Filed 11/30/2007

Page 1 of 2

EXHIBIT E

Case 1:95-cv-00650-LSM

Document 105-6

Filed 11/30/2007

Page 2 of 2

Trauben , Bruce ( ENRD
From:
McBride , Lawrence G. (LMcBride
foley. com)

Sent:
To:

Thursday, October 25 20074:10 PM . Trauben , Bruce (ENRD)
RE: Depositions of Mike Lee , Harry Frey and Hilton Cass

Subject:

Bruce,

Thanks for info / confirmations for the three. We do not have anyone available other than Aloisi and Kendle not reached yet. I just got your disk, thanks. Now , do I have concordance on my

greatly.

I r m bringing the A- list docs. Thanks for arrangements on document availability

simplifies things

Ferrero.

machine?

Larry
(mailto:Bruce. Trauben usdoj . govJ Sent: Thursday, October 25, 2007 4:03 PM To: McBride, Lawrence G. Cc: Miller, Shelley (ENRD) Yarbrough , Mariel (ENRD) Subject: Depositions of Mike Lee, Harry Frey and Hilton Cass Importance: High

From: Trauben, Bruce (ENRD)

Original Message-

risk of repeating, I am making arrangements to have all FS, FWS (admin record) and LCM documents available, including the mineral examination report, as supplemented, and documents recently produced by Defendant. If there is any particular document that you are concerned about being available, please let me know as soon as possible as we re sending a box (or two) out tonight for delivery Monday a. have their documents on hand? In a pinch, we'll have electronic copies of the documents available to us at the FS office. Bruce

Larry: Mike Lee Harry Frey (Tuesday a. m. ) and Hilton Cass (Tuesday afternoon and continuing thru Wed. a. m. if necessary) are confirmed. I' m waiting to hear back from Al Buchter to confirm his availability for Monday a. m. Any word for me on the availability of deponents in addition to Fred and Tom? Also, at the
(Monday afternoon)

m. in Yreka. will plaintiffs

For U. S. Mail:

Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources U. S. Department of Justice O. Box 663 Washington, D. C. 20044 - 0663

Div.

Ph:

Fax:

(202) 305- 0238 (202) 305- 0506

Hand/Overnight Deliveries: Bruce K. Trauben
ENRD /NRS U. S. DOJ

601 D Street, N. W., Rm. 3126

Washington ,

D. C.

20004

Case 1:95-cv-00650-LSM

Document 105-7

Filed 11/30/2007

Page 1 of 4

EXHIBIT F

Case 1:95-cv-00650-LSM

Document 105-7

Filed 11/30/2007

Page 2 of 4Page 1 of

Trauben , Bruce (ENRD)

Sent:
Bruce , fyi.

From: McBride , Lawrence G. (LMcBride

foley. comJ

Monday, November 05 200712:56 PM

To: Trauben , Bruce (ENRD)

Subject: Aloisi et al. v. US - 11/5/07 Letter to Mr. Trauben
Attachments: DOC. PDF

The letter with its attachments/enclosures will be delivered today. We are working on the availability of the others you noticed.

Larry McBride
Lawrence G. McBride , Esq. Foley & Lardner LLP
Washington Harbour

3000 K St. , N. , Suite 500 Washington , DC 20007

Imcbride

foley. com

(202) 295-4017 (Direct) (202) 672-5399 (Fax) (202) 672- 5300 (Switchboard)

not

ww. foley. com

The preceding email message may be confidential or protected by the attorney- client privilege. It is intended for transmission to , or receipt by, any unauthorized persons. If you have received this message in error , please (i) do not read it, (ii) reply to the sender that you received the message in error , and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit ofthe Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject ofthis message , and may not be relied upon by any other part.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue , unless expressly stated otherwise the advice is not intended or written to be used , and it cannot be used by the recipient or any other taxpayer , for the purose of avoiding Federal tax penalties , and was not written to support the promotion or marketing of any transaction or matter discussed herein.

11/20/2007

Case 1:95-cv-00650-LSM

Document 105-7

Filed 11/30/2007

Page 3 of 4

FOLEY
FOLEY & LARDNER LLP

ATTORNEYS AT LAW

WASHINGTON HARBOUR
3000 K STREET , N. , SUITE 500 WASHINGTON , D. C. 20007- 5143

November 5 2007

202. 672. 5300 TEL 202. 672. 5399 FAX www.foley. com
WRITER' S DIRECT LINE

202. 295.4017 Imcbride(Qfoley. com EMAIL
CLIENT/MATTER NUMBER

304280- 0002

Bruce Trauben , Esq. General Litigation Section Environment & Natual Resources Division U. S. Deparment of Justice P. O. Box 663 , Ben Franklin Station Washington , D. C. 20044
Re:
Discovery and deposition follow-up in

Aloisi. et al. v. United States , No. 95- 650L

(Ct. Fed. Cl.)

BY HAND DELIVERY
Dear Mr. Trauben:

I am following up on a series of document production loose ends from our week in
Y reka.

1. I enclose a fresh "

list" of plaintiffs ' document production , adding A- 179 through A-

183 , and correcting several entres as indicated here.

map displaying the locations of the water samples , one each of the two reports originally produced as A- 27 and FS- , and have revised the entry at A27 to reflect the complete set - two CH2M Hil reports and the site map.
2. I enclose a color print of the
3. I enclose a set of the " zoom " maps , thee that go with each primar map at A- 152 , A153 and A- 154. This set contains the labeling you requested during Mr. Ferrero s deposition.

4. I enclose an additional copy of A- 176. On this one I have copied in the text that was so faded on the original fax (on the photo-sensitive , easily light bleached paper ofthe day). If you wish to see the version from which I made the copy in order to confirm the text , let me know.
5. I enclose new A- 183 , the work notes of2007 Mr. Ferrero used in creating and documenting his Spreadsheets produced as A- 151 , as discussed at his deposition Thursday.

6. I have provided A- 151 , Mr. Ferrero s spreadsheets 1- , to Craig Wood for him to use in preparng the transcript of your examination of Mr. Ferrero.

BOSTON BRUSSELS
CHICAGO DETROIT JACKSONVILLE

LOS ANGELES MADISON MILWAUKEE NEW YORK ORLANDO

SACRAMENTO SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SILICON VALLEY

TALLAHASSEE TAMPA TOKYO WASHINGTON , D.

WASH

21 08803. 1

Case 1:95-cv-00650-LSM

Document 105-7

Filed 11/30/2007

Page 4 of 4

: FOLEY
FOLEY & LARDNER LLP

Bruce Trauben , Esq.
November 5 , 2007
Page 2

On your side , I would appreciate your sending me the complete current index to the
Forest Service " document series, to which you added the Mineral Report and its attachments

and appendices , and perhaps other material. The index I have of the Forest Service document set
ends at FS- 189.

Also , we need to receive the memorandum Mike Lee testified he sent to his superiors at some point after July 23 , 1990 (the date of the FWS biological opinion), and the related agency file responding to him , if any - as described by Mr. Lee , the memorandum asked questions about the agency s handling of north em spotted owl issues with respect to mining. So far as I could see , no such document was previously produced in the Forest Service document series; please correct me if! have missed it. Absent production of this material we expect confirmation that there is no such memorandum and agency fie.

Please let me know when you have received and can share the documents you receive from attorney Jerry Jacobson in response to the subpoena you indicated that you served on Mr. Jacobson electronically on Thursday.

We recognize there are a number of other issues to treat , including whether you stil wish to depose others among those you noticed. I am working on their availability should you still wish to do so , and I should have information on that score in the next couple of days. I am stil decided whether we need to subpoena any ex- Forest Service employees among those you indicated would not cooperate with you last week.
Sincerely,

Lawrence G. McBride
Enclosures

WASH 21 08803.

Case 1:95-cv-00650-LSM

Document 105-8

Filed 11/30/2007

Page 1 of 2

EXHIBIT G

Case 1:95-cv-00650-LSM

Document 105-8

Filed 11/30/2007

Page 2 of 2

Trauben , Bruce (ENRD)
From:

Trauben , Bruce (ENRD)
Tuesday, November 06 , 2007 6:46 PM McBride , Lawrence G.'

Sent:
To: Cc:

Subject:

Shapiro , Willam (ENRD) Aloisi: Nov. 5 , 2007 Letter

Larry: Upon reviewing your Nov. 5 , 2007 letter , I do not recall that Mike Lee testified that there was or is " a related agency file responding to him " or that the request for clarification to the Washington Office was necessarily by letter or memorandum , but we ll look. We did produce ISC responses to questions posed. It appears that the ISC periodically prepared written responses to frequently asked questions regarding the Spotted Owl Strategy that were posed by various agencies (e. , FS , BLM and FWS). It' s my understanding that the ISC Strategy affected both the Pacific Northwest (Washington and Oregon) and Pacific Southwest (California) Regions of the Forest Service , and the responses to questions applied to both Regions. I do not know that we produced all responses to questions ever issued by the ISC , but those that have been located have been produced.
Please let me know when Candis Aloisi and Jim Kendle are available for deposition. I may take their depositions by

telephone , with the court reporter present at their location (a video deposition may also be possible). Also , please let me
know whether you locate any representative of the other corporate plaintiffs , Energel and Dynatech. If it does not interfere with motions practice , then we (Le. , the government) may agree to take any additional depositions out of time , if necessary, and I assume Plaintiffs would agree to that.
Finally, I think that you would prefer to bring to the Court' s attention that Mr. Goodman is deceased than to have me do so. Notice or suggestion of death to the court triggers Rule 25 , which requires substitution of the deceased part within 90 days. If there is a possibility that the action may be dismissed with respect to Mr. Goodman pursuant to that rule , then I am obligated to pursue it. I , therefore , intend to submit notice to the Court of Mr. Goodman s death in 2004 by Tuesday, November 13th , to trigger Rule 25 , unless you do so by then.

Regards , Bruce

For U. S. Mail

Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources Div. S. Department of Justice O. Box 663 Washington , D. C. 20044- 0663
Ph: (202) 305- 0238

Fax: (202) 305- 0506
Hand/Overniaht Deliveries Bruce K. Trauben ENRD/NRS S. DOJ 601 D Street , N. , Rm. 3126 Washington , D. C. 20004

Case 1:95-cv-00650-LSM

Document 105-9

Filed 11/30/2007

Page 1 of 3

EXHIBIT H

Case 1:95-cv-00650-LSM

Document 105-9

Filed 11/30/2007

Page 2 of 3

S. Department of Justice
Environment ana Natural Resources Division
bkt 90- 23- 3261
Natural Resources Section

P. O. Box 663 Ben Franklin Staton

Telephone (202) 305- 0238 Facsimile (202) 305- 0267 bruce. traubenfsdoj. gov

Washington, DC 20044- 0663

November 9 , 2007

VIA FACSIMILE (202) 672- 5399
Lawrence G. McBride , Esq. Foley & Lardner LLP Washington Harbour 3000 K Street , N. , Suite 500 Washington , D. C. 20007- 5143
Re:

Aloisi v. United States. CFC No. 95- 650L

DearMr. McBride:

To ensure timely delivery, please find attached a print-out of my e-mail to you today regarding the depositions of James Kendle , Energel and Dynatech.

Than you for your attention to this matter. Please do not hesitate to contact me if you have any questions or concerns.
Sincerely, //

Trial Attorney

FAX

GENERAL SERVICES ADMINISTRATION

Case 1:95-cv-00650-LSM

Document 105-9

Filed 11/30/2007

Page 3 of 3

Trauben , Bruce ( ENRD
From: Sent:
To: Cc:

Trauben , Bruce (ENRD) Friday, November 09 , 2007 1 :39 PM
McBride , Lawrence G.'

Subject:

Shapiro , William (ENRD); Miller , Shelley (ENRD) Aloisi: Suggestion of Death of Goodman & Depositions of Kendle , 30(b)(6) of Energel and Dynatech

Larry: Just a reminder that on Tuesday, I intend to file a Suggestion of Death of Donald W. Goodman , forwarding a copy of an obituary notice to the Court , unless Plaintiffs file today. (By the way, according to the Reading Eagle , Mr. Goodman died June 4 2005 at 2:45 p. m. in his Wrightsville , PA residence. ) Also , next week , we will have no choice but to file a motion to compel the depositions of James Kendle and 30(b)(6) depositions of Energel and Dynatech. In light of the death of Donald W. Goodman , if there no longer is someone who can speak or act on behalf of these corporate entities , then they should be dismissed from this action with prejudice. So that I don t file an unnecessary motion to compel with respect to Energel and Dynatech , I suggest that you send a letter to my attention as soon as possible , indicating that they wil be dismissed with prejudice. In the meantime , we are looking into a venue for a telephone deposition of Candis Aloisi Potter near Truth or Consequences , NM. Thanks. Bruce

For U. S. Mail

Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources Div. S. Department of Justice

O. Box 663 . Washington , D. C. 20044-0663
Ph: (202) 305- 0238

Fax: (202) 305-0506
Hand/Overniaht Deliveries Bruce K. Trauben ENRD/NRS S. DOJ 601 D Street , N. , Rm. 3126

Washington , D. C. 20004

Case 1:95-cv-00650-LSM

Document 105-10

Filed 11/30/2007

Page 1 of 3

EXHIBIT I

- - - - -

-----

- - --

Case 1:95-cv-00650-LSM

Document 105-10

Filed 11/30/2007

Page 2 of 3

Trauben , Bruce (ENRD)
From:

Sent:
To: Cc:

Trauben , Bruce (ENRD) Monday, November 19 20073:47 PM
McBride , Lawrence G.'

Shapiro , William (ENRD)
RE: Aloisi v. United States: Privileged Communications Produced by Finkelstein

Subject:

I have found some correspondence to Tom and Fred that was not produced in this action, the government may not have requested its production (still looking at that issue), so I may have prematurely stated in my e-mail below that it " should have been produced in this action. " My apologies.

Larry: While

Nevertheless, questions are arising with respect to Mr. Finkelstein' s production because as Mr. Goodman I s accountant, Mr. Finkelstein I s records were under Mr. Goodman' s control and normally should have been reviewed and produced by Mr. Goodman in response to the government' s requests, as he was a Plaintiff in this action. But because of his death over 2 years ago, Mr. Goodman I s documents were not reviewed, as they presumably would have This again highlights the need to inform the Court of Mr. Goodman I s death. Also, Plaintiffs have not identified anyone who can testify on behalf of Plaintiffs Energel and Dynatech, which Defendant has a right to depose in this becoming apparent that we need to involve the Court to resolve some of these Regards, Bruce

been.

action. It is issues.

From: Trauben, Bruce (ENRD)

Original Message-

To: ' McBride, Lawrence G.

Sent: Monday, November 19, 2007 2:57 PM

Cc: Shapiro, William (ENRD)
Subject: RE: Aloisi v. United States: Privileged Communications Produced by Finkelstein

Mr. McBride: While we do not intend to challenge waiver , you knew that we subpoenaed Mr. Finkelstein' s records before he produced them and, in fact, you spoke with him on the telephone before he produced any documents to the government. So you had an opportunity to ask Mr. Finkelstein whether any documents in his possession were marked " privileged. More troubling, for your information, is the correspondence that I I m finding that is addressed to Tom Ferrero and copied to Fred Aloisi that should have been produced in this action as there is no attached privilege or work product protection. I' m considering our Regards, Bruce Trauben

options.

Original Message-

To: Trauben, Bruce (ENRD)
Bruce,

From: McBride, Lawrence G. (mail to: LMcBride Sent: Monday, November 19, 2007 2:47 PM

foley . com)

Subject: RE: Aloisi v. United States: Privileged Communications Produced by Finkelstein
I have not seen what Mr. Finkelstein produced, nor did I have the opportunity to the material in any way before your copiers picked them up from him in New Jersey. Please treat that and any other potentially privileged documents you may find as inadvertently produced until I have the opportunity to review Finkelstein I s production , which I will do promptly upon my receipt of

Larry
From: Trauben, Bruce (ENRD) (mailto:Bruce. Trauben usdoj . gov) Sent: Monday, November 19, 2007 2: 36 PM
To: McBride, Lawrence G.
Original Message-

it.

Cc: Shapiro, William

(ENRD)

rose. miksovsky usda. gov

Subj ect: Aloisi v. United States: Privileged Communications Produced by

Case 1:95-cv-00650-LSM

Document 105-10

Filed 11/30/2007

Page 3 of 3

Finkelstein
Larry: Do Plaintiffs intend to waive any privilege attached to documents produced by Myron Finkelstein? So far, I' ve found a 9- 24- 1999 memo from you to Don and Fred with a recommendation on the Forest Service contest, which I have not read beyond what I needed to see to identify it as potentially, formerly privileged. Regards, Bruce

For U. S.

Mai 1

Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources U. S. Department of Justice O. Box 663

Div.

Washington, D. C.
Ph:
(202) 305.

20044- 0663

Fax:

0238

(202) 305- 0506

Hand/Overnight Deliveries: Bruce K. Trauben
ENRD /NRS U. S. DOJ

Washington ,

601 D Street, N. W., Rm. 3126 D. C. 20004

The preceding email message may be confidential or protected by the attorney- client privilege. It is not intended for transmission to, or receipt by, any unauthorized you have received this message in (i) do not read (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client (s) represented by the Firm in the particular matter that is the subj ect of this message, and may not be relied upon by any other party.

persons. If

error, please

it,

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer , for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

Case 1:95-cv-00650-LSM

Document 105-11

Filed 11/30/2007

Page 1 of 2

EXHIBIT J

Case 1:95-cv-00650-LSM

Document 105-11

Filed 11/30/2007

Page 2 of 2

Trauben , Bruce (ENRD)
From:

Sent:
To: Cc:

Subject:

Trauben , Bruce (ENRD) Tuesday, November 20 , 2007 11 :23 AM McBride , Lawrence G. Shapiro , William (ENRD) Aloisi v. United States , No. 95- 650L

Mr. McBride: I write to inform you that I intend to file a suggestion of death today regarding Don Goodman as well as a
motion to compel the appearance at deposition of James Kendle , Energel and Dynatech. I intend to ask the court to dismiss these three plaintiffs if they are not available for deposition. I need to do what is best for my client , and regret that

I cannot wait longer for Plaintiffs to act.

Regards , Bruce Trauben

For U. S. Mail

Bruce K. Trauben Trial Attorney Natural Resources Section Environment & Natural Resources Div. S. Department of Justice O. Box 663 Washington , D. C. 20044- 0663
Ph: (202) 305- 0238

Fax: (202) 305- 0506
Hand/Overniaht Deliveries Bruce K. Trauben ENRD/NRS S. DOJ 601 D Street , N. , Rm. 3126 Washington , D. C. 20004

Case 1:95-cv-00650-LSM

Document 105-12

Filed 11/30/2007

Page 1 of 2

EXHIBIT K

Dynatech / Energel Case 1:95-cv-00650-LSM

Document 105-12

Filed 11/30/2007

Page 1 of Page 2 of 2

Trauben , Bruce (ENRD)
From: McBride , Lawrence G. (LMcBride
foley. comJ

Sent: Monday, November 26
To: Trauben , Bruce (ENRD)
Subject: Dynatech / Energel

20073:09 PM

Bruce
Both of these entities were controlled by Don Goodman , and Myron Finkelstein was involved in their accounting and other matters. I have been working on this in connection with the successors to Goodman issue , and spoke to Finkelstein this morning about your message from last week that you intended to seek their dismissal under these circumstances. I have been working with him to establish whether there is any successor to Goodman who can speak for the entities at this point , or whether they should be dismissed. I would prefer if you could give me until the end of the week -- at

that point we should have worked out who it would be or whether I should seek their dismissal.
Larry McBride
Lawrence G. McBride , Esq. Foley & Lardner LLP
Washington Harbour

3000 K St. , N. , Suite 500 Washington , DC 20007

Imcbride

foley . com

(202) 295-4017 (Direct) (202) 672- 5399 (Fax) (202) 672- 5300 (Switchboard)

ww. foleV. com

not

The preceding email message may be confidential or protected by the attorney- client privilege. It is intended for transmission to , or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it , (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message , and may not be relied upon by any other part.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue , unless expressly stated otherwise the advice is not intended or written to be used , and it canot be used by the recipient or any other taxpayer , for the purpose of avoiding Federal tax penalties , and was not written to support the promotion or marketing of any transaction or matter discussed herein.

11/2612007