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

Case 1:95-cv-00524-GWM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HOMER J. HOLLAND, STEVEN BANGERT, Co-Executor of The Estate Of HOWARD R. ROSS, AND FIRST BANK Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 95-524 C (Judge G. Miller)

PLAINTIFFS' OBJECTIONS AND COUNTER-DESIGNATIONS TO DEFENDANT'S EXPERT WITNESS DEPOSITION DESIGNATIONS

I.

Objections to Defendant's Deposition Excerpts A. Objections to Defendant's Deposition Designations of Homer Holland Objection(s)1 omits question; lacks context to the point that the excerpt is not understandable; irrelevant because addresses damages calculation that is not being presented omits question; lacks context to the point that the excerpt is not understandable; irrelevant because addresses damages calculation that is not being presented irrelevant because addresses damages calculation that is not being presented

Transcript Citation 10/31/01 Tr. 21:8-18

10/31/01 Tr. 25:5-21

1031/01 Tr. 37:8-39:16

1

Plaintiffs preserve all objections that were stated on the record or that are preserved pursuant to the Court's Rules or any governing law.

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10/31/01 Tr. 67:7-14

beyond the permissible scope of the deposition in that it seeks fact testimony in the course of an expert deposition irrelevant because addresses damages calculation that is not being presented irrelevant because addresses damages calculation that is not being presented irrelevant because addresses damages calculation that is not being presented; lines 10-12 exceed the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition irrelevant because addresses damages calculation that is not being presented; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition irrelevant because addresses damages calculation that is not being presented; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; omits portion of response

11/01/01 Tr. 169:25-170:6

11/01/01 Tr. 175:3-180:11

11/01/01 Tr. 201:1-12

11/01/01 Tr. 203:8-20

11/01/01 Tr. 205:11-206:7

11/01/01 Tr. 208:25-210:16

irrelevant because addresses damages calculation that is not being presented; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; irrelevant because addresses damages calculation that is not being presented; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; omits portion of response omits portion of question; irrelevant because addresses damages calculation that is not being presented;

11/01/01 Tr. 210:20-212:4

11/01/01 Tr. 222:25-224:21

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11/01/01 Tr. 2237:9-240:24

11/01/01 Tr. 242:1-4

240:10-24 exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; irrelevant because addresses damages calculation that is not being presented; omits question; omits portion of response irrelevant because addresses damages calculation that is not being presented; irrelevant because addresses damages calculation that is not being presented; omits question irrelevant because addresses damages calculation that is not being presented; omits question; omits portion of response; irrelevant because addresses damages calculation that is not being presented; omits question; omits portion of response; irrelevant because addresses damages calculation that is not being presented; omits question; irrelevant because addresses damages calculation that is not being presented; omits question; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; irrelevant because addresses damages calculation that is not being presented; irrelevant because addresses damages calculation that is not being presented; so lacking in context as to be incomprehensible; irrelevant because addresses damages calculation that is not being presented; portions exceed the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition;

11/02/01 Tr. 314:23-315:1

11/02/01 Tr. 316:7-12

11/02/01 Tr. 317:21-24

11/02/01 Tr. 319:18-22

11/02/01 Tr. 329:4-6

11/02/01 Tr. 362:20-363-8

11/02/01 Tr. 382:20-384:4

11/02/01 Tr. 395:17-24

11/02/01 Tr. 473:22-484:15

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11/02/01 Tr. 485:3-7

irrelevant because addresses damages calculation that is not being presented; irrelevant because witness merely confirms he is offering no legal opinion 17:4-5 are irrelevant notations; entire exchange is irrelevant to any material issue irrelevant to any material issue irrelevant because addresses damages calculation that is not being presented; irrelevant because addresses damages calculation that is not being presented; irrelevant and not best evidence because witness is asked merely to confirm that he sees a particular statement in a document; exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; irrelevant because addresses damages calculation that is not being presented; so lacking in context as to make the potential significance of any particular verbal formulation unclear; risk of unfair prejudice outweighs any potential probative value irrelevant because addresses damages calculation that is not being presented; so lacking in context as to make the potential significance of any particular verbal formulation unclear; risk of unfair prejudice outweighs any potential probative value

5/11/05 Tr. 17:4-18:16

5/11/05 Tr. 24:2-7 5/11/05 Tr. 73:7-74:22

5/11/05 Tr. 82:2-83:3

5/11/05 Tr. 84:13-86:1

5/11/05 Tr. 175:15-18

5/11/05 Tr. 178:8-18

5/11/05 Tr. 183:22-25

omits question; omits portion of response; irrelevant because addresses damages calculation that is not being presented; so lacking in context as to make the potential significance of any particular verbal formulation unclear; risk of unfair prejudice outweighs any potential probative value

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5/11/05 Tr. 187:2-188:7

irrelevant to any material issue;

5/11/05 Tr. 202:14-19

omits question; irrelevant because addresses damages calculation that is not being presented; so lacking in context as to be incomprehensible irrelevant because addresses damages calculation that is not being presented; omits question; so lacking in context as to be incomprehensible irrelevant to any material issue

5/11/05 Tr. 219:24-221:2

5/12/05 Tr. 263:13-18

5/12/05 Tr. 408:7-19

5/12/05 Tr. 408:24-409:9

omits portion of question; irrelevant to any material issue exceeds the permissible scope of the deposition in seeking fact testimony in the course of an expert deposition; omits material portion of exchange; omits portion of last response; so lacking in context as to be incomprehensible; begins mid-sentence in a response; ends mid-sentence in a question so lacking in context as to be incomprehensible; omits beginning question; ends mid-sentence in a response so lacking in context as to be incomprehensible; begins mid-sentence in question; omits most of question; omits most of response so lacking in context as to be incomprehensible; begins mid-sentence in videographer's commentary; omits much of last response

5/13/05 Tr. 580:21-581:11

6/27/07 Tr. 7:6-9, 8:19-12:17

6/27/07 Tr. 28:6-11

6/27/07 Tr. 32:14-36:6

6/27/01 Tr. 55:4-13

6/27/01 Tr. 57:19-62:2

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6/27/01 Tr. 63:11-19

so lacking in context as to be incomprehensible; omits all but one word of beginning question; ends in mid-question so lacking in context as to be incomprehensible; omits opening question and most of opening response; ends midsentence in last response so lacking in context as to be incomprehensible; omits opening question and all but one word of opening response; ends mid-sentence in last response so lacking in context as to be incomprehensible; begins mid-sentence in opening question; ends mid-sentence in last response so lacking in context as to be incomprehensible; begins mid-sentence in opening question; ends with identification of examining counsel; exceeds the permissible scope of the deposition in seeking nonexpert testimony in the course of an expert deposition; so lacking in context as to be incomprehensible; begins with one-word response "Probably"; ends mid-sentence in last question; so lacking in context as to be incomprehensible; ends mid-sentence in last response; so lacking in context as to be incomprehensible; omits initial question so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in response; mischaracterizes testimony; ends midsentence in question;

6/27/07 Tr. 65:17-68:4

6/27/07 Tr. 70:9-71:2

6/27/07 Tr. 71:12-72:11

6/27/07 Tr. 86:4-13

6/27/07 Tr. 87:16-19

6/27/07 Tr. 93:8-94:2

6/27/07 Tr. 94:19-95:2

6/27/07 Tr. 98:1-99:4

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6/27/07 Tr. 100:13-101:1

so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in response; ends midsentence in response; so lacking in context as to be incomprehensible; begins with one word of initial question; ends mid-sentence in final response; so lacking in context as to be incomprehensible; omits question; ends midsentence in response; so lacking in context as to be incomprehensible; omits most of initial question; ends mid-sentence in last question; so lacking in context as to be incomprehensible; omits initial question; begins with one word response "Yes"; ends mid-sentence in next response; so lacking in context as to be incomprehensible; begins mid-sentence in initial question; ends with next question; so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in initial response; ends mid-sentence in subsequent response; so lacking in context as to be incomprehensible; begins mid-sentence in initial question; so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in initial response; so lacking in context as to be incomprehensible; provides fragments of question and answer

6/27/07 Tr. 105:8-107:11

6/27/07 Tr. 107:18-22

6/27/07 Tr. 121:18-21

6/27/07 Tr. 122:16-123:5

6/27/07 Tr. 124:7-125:7

6/27/07 Tr. 131:14-132: 6

6/27/07 Tr. 134:8-135:8

6/27/07 Tr. 147:7-19

6/27/07 Tr. 154:4-10

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6/27/07 Tr. 155:10-157:5

so lacking in context as to be incomprehensible; provides fragments of questions so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in initial response; ends mid-sentence in subsequent response so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in initial response; ends mid-sentence in subsequent response so lacking in context as to be incomprehensible; includes only one line -"Either to the corporation or to the" -- of a 14-line response so lacking in context as to be incomprehensible; omits part of initial question; ends mid-sentence in subsequent question so lacking in context as to be incomprehensible; omits initial question; ends mid-sentence in subsequent response so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in response; ends with subsequent question so lacking in context as to be incomprehensible; omits initial question; ends mid-sentence in response 222:18 to 223:4 are so lacking in context as to be incomprehensible; witness merely confirms that he sees certain language in a document so lacking in context as to be incomprehensible; omits part of initial question; ends mid-sentence in subsequent question

6/27/07 Tr. 180:5-14

6/27/07 Tr. 191:10-192:16

6/27/07 Tr. 198:9-14

6/27/07 Tr. 204:5-205:20

6/27/07 Tr. 212:12-213:1

6/27/07 Tr. 213:19-217:1

6/27/07 Tr. 218:17-22

6/27/07 Tr. 221:6-223:4

6/27/07 Tr. 223:17-20

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6/27/07 Tr. 238:2-239:3

so lacking in context as to be incomprehensible; omits initial question; begins mid-sentence in response; ends with identification of examining counsel so lacking in context as to be incomprehensible; omits portion of initial question; so lacking in context as to be incomprehensible; omits portion of initial question; omits portion of subsequent response so lacking in context as to be incomprehensible; omits entire question; omits portion of response; omits portion of question; so lacking in context as to be incomprehensible; omits entire question; omits most of response; so lacking in context as to be incomprehensible; question refers to prior testimony and asks about the "things you were just describing"; irrelevant; question seeks opinion on a matter of law;

6/28/07 Tr. 294:2-295:7

6/28/07 Tr. 298:10-299:12

6/28/07 Tr. 300:17-301:3

6/28/07 Tr. 306:20-307:11 6/28/07 Tr. 314:10-13

6/28/07 Tr. 392:15-393:9

6/28/07 Tr. 462:15-463:1

B.

Objections to Defendant's Deposition Designations of Neil Murphy Objection irrelevant because addresses damages calculation that is not being presented provides fragment of question; omits answer to last question; lacks context to the point that the excerpt is not understandable; irrelevant because addresses damages calculation that is not being presented

Transcript Citation 10/11/01 Tr. 58:16-60:7

10/11/01 Tr. 65:7-18

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10/11/01 Tr. 138:22-139:1

provides only fragment of answer; lacks context to the point that excerpt is not understandable lacks context to the point that the excerpt is not understandable. irrelevant because excerpt addresses a damages model that is not being presented. omits question and provides only fragment of answer; lacks context to the point that excerpt is not understandable omits question, provides fragment of answer; lacks context to the point that excerpt is not understandable omits question; lacks context to the point that excerpt is not understandable provides only fragment of answer omits question, provides fragment of answer lacks context to the point that the excerpt is not understandable omits question, provides fragment of answer lacks context to the point that excerpt is not understandable lacks context to the point that excerpt is not understandable; irrelevant because addresses damages theory not being presented

10/11/01 Tr. 168:23-169:6

10/12/01 Tr. 226:2-227:2

10/12/01 Tr. 249:23-25

10/12/01 Tr. 256:14-257:7

10/12/01 Tr. 260:22-261:8

10/12/01 Tr. 261:20-23 10/12/01 Tr. 265:2-266:25 10/12/01 Tr. 267:4-8

10/12/01 Tr. 272:1-273:1 10/12/01 Tr. 275:2-11

10/12/01 Tr. 321:18-322:10

C.

Objections to Defendant's Deposition Designations of Lynn Stokes Objection omits question and most of answer omits question and most of answer omits context to the point that excerpt makes

Transcript Citation 10/22/01 Tr. 137:14-17 10/22/01 Tr. 149:12-17 10/22/01 Tr. 165:16 - 166:8

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no sense; irrelevant because addresses quantification of damages from perspective of Holland and Ross rather than First Bank. 10/23/01 Tr. 198:9-14 omits question and most of answer; also omits context to the point that excerpt makes no sense. lacks context to the point that excerpt makes no sense.

10/23/01 Tr. 250:1-251:5

Plaintiffs further object to the Defendant's designations of excerpts from the deposition of Lynn Stokes to the extent that Defendant has failed to include the errata sheet corrections corresponding to the relevant excerpts. The errata sheets from Lyn n Stokes' deposition are attached hereto as Exhibit 1. II. Counter-Designations to Defendant's Deposition Excerpts A. Counter-Designations from the Deposition Testimony of Homer Holland Assuming Defendant's counter-designations are admitted in whole or in part, Plaintiffs respectfully request the following testimony from Homer Holland obtained in this case on October 31, 2001; November 1, 2001; November 2, 2001; May 11, 2005; May 12, 2005; June 27, 2007; and June 28, 2007, be admitted. From the October 31, 2001 deposition transcript: 8:8-9:11; 11:2-22; 21:18-37:4; 39:16-41:11. From the November 1, 2001 deposition transcript: 206:8-207:3 (only if 205:11-206:7 are admitted); 212:5-213:9 (only if 210:20212:4 are admitted); 222:15-24; 241:15-25 (only if 242:1-4 are admitted). From the November 2, 2001 deposition transcript: 316:1-6 (only if 316:7-12 are admitted); 316:13-317:20 (only if 316:7-12 are admitted); 319:14-320:14 (only if 319:18-22 are admitted); 326:20-331:3 (only if 329 4-6

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are admitted); 384:5-23 (only if 382:20-384:4 are admitted); 395:3-14 and 396:18-397:1 (only if 395:17-24 admitted). From the May 11, 2005 deposition transcript: 157:24-159:6 (only if 157:16-23 are admitted); 183:17-21 and 184:1-3 (only if 183:22-25 are admitted); 202:11-13 and 207:4-19 (only if 202:14-19 are admitted). From the May 12, 2005 deposition transcript: 262:18-263:12 (only if 263:13-18 are admitted); 408:20-25 (only if 408:24-409:9 are admitted). From the June 27, 2007 deposition transcript (only if adjacent material in defendant's motion is admitted): 7:17-8:18; 28:1-14; 32:4-13 and 36:7; 54:18-55:19; 64:5-65:16 and 68:5-68:11; 69:17-70:8; 71:10-72:14; 85:22-86:5; 87:3-12; 93:19-94:3; 94:14-18; 97:15-98:4; 99:315; 99:21-101:2; 105:7-107:12; 107:15-108:4; 121:17-122:7; 122:13-123:9; 124:5125:12; 131:8-132:8; 134:7-134:17; 146:14-147:10; 154:3-11; 155:6-157:14; 180:2-19; 190:7-192:18; 198:10-199:5; 212:6-213:4; 213:6-217:1; 218:14-219:3; 223:16-224:3; 237:15-19; 238:1-5. From the June 28, 2007 deposition transcript (except as noted, all proffered only if adjacent material in defendant's motion is admitted): 293:21-294:3; 298:19-299:20; 300:9-301:3; 311:14-312:1; 313:16-315:2; 333:21334:14 (if 314:10-13 admitted). These excerpts are attached hereto as Exhibit 2. B. Counter-Designations from the Deposition Testimony of Neil Murphy

Assuming Defendant's counter-designations are admitted in whole or in part, Plaintiffs respectfully request the following testimony from Neil Murphy obtained in this - 12 -

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case on October 11, 2001 and October 12, 2001, be admitted: Tr. 11:20-23; 14:17-15:7; 15:17-16:21; 23:18-24:5; 25:12-25; 26:1-14; 54:6-15; 58:4-15; 197:15-17; 238:18-239:6; 243:12-243:20; 352:25 - 353:21. These excerpts are attached hereto as Exhibit 3. C. Counter-Designations from the Deposition Testimony of Lynn Stokes

Assuming Defendant's counter-designations are admitted in whole or in part, Plaintiffs respectfully request the following testimony from Lynn Stokes obtained in this case on October 22, 2001, and October 23, 2001, be admitted: Tr. 108:12-21; 244:17-21, 271:18-23, 282:18-283:19. These excerpts are attached hereto as Exhibit 4.

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Respectfully submitted, /s/ David B. Bergman David B. Bergman ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (tel.) (202) 942-5999 (fax) Counsel for Plaintiffs Holland and Ross and First Bank

Of Counsel: Melvin C. Garbow Howard N. Cayne Michael A. Johnson Joshua P. Wilson ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Co-counsel for First Bank: Donald J. Gunn, Jr., Esq. Sharon R. Wice, Esq. Gunn and Gunn First Bank Building Creve Coeur 11901 Olive Blvd., Suite 312 P.O. Box 419002 St. Louis, Missouri 63141 (314) 432-4550 (tel.) (314) 432-4489 (fax)

Dated: November 20, 2007

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CERTIFICATE OF SERVICE I certify that on this 20th day of November 2007, I caused the foregoing PLAINTIFFS' OBJECTIONS AND COUNTER-DESIGNATIONS TO DEFENDANT'S EXPERT WITNESS DEPOSITION DESIGNATIONS to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

Dated: November 20, 2007

/s/ Joshua P. Wilson Joshua P. Wilson