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

Case 1:95-cv-00468-TCW

Document 170

Filed 02/20/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 95-468C (Judge Thomas C. Wheeler)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO PRESENT THE TRIAL TESTIMONY OF THOMAS DIXON LOVELY BY VIDEO CONFERENCE Defendant, the United States, respectfully submits its response to the motion of plaintiff, Astoria Federal Savings and Loan Association ("Astoria"), to present the trial testimony of Thomas Dixon Lovely by video conference from Marco Island, Florida. We do not oppose plaintiff's motion within the following framework. First, that plaintiff will provide us with the date or dates of Mr. Lovely's video conference in writing at least 30 days before the proposed testimony. This will permit our attorneys to make suitable travel and hotel arrangements and otherwise arrange their affairs to facilitate the travel required by plaintiff's request. Second, if necessary, that accommodation be given to us if the attorney from our trial team assigned to examine Mr. Lovely is also responsible for covering a witness scheduled to appear by plaintiff at trial in Washington, D.C., either the day before or the day after Mr. Lovely's video conference testimony. For example, if need be, plaintiff's order of witnesses can be rearranged, or the appearance of a witness already testifying in Washington, D.C., can be

Case 1:95-cv-00468-TCW

Document 170

Filed 02/20/2007

Page 2 of 4

interrupted, so that Mr. Lovely's testimony goes forward on a date certain. This will ensure that we are not disadvantaged with respect to other witnesses by the need of our attorneys to travel to or from Florida to accommodate Mr. Lovely.1 Third, plaintiff shall pay for all costs of the video conference (not including our travel and hotel costs). While we intend to name Mr. Lovely on our witness list and, thus, anticipate the possibility of going beyond the scope of plaintiff's direct examination during our examination of Mr. Lovely, it would, in the normal course, be our strong preference to examine Mr. Lovely before this Court in Washington, D.C. Thus, the Court should obligate the plaintiff to pay for this accommodation to Mr. Lovely. Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General JEANNE E. DAVIDSON Acting Director /s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

We discussed two specific issues with plaintiff's counsel in this regard. First, we requested that plaintiff attempt to schedule Mr. Lovely's testimony on either a Friday or a Monday, thus reducing the likelihood of a conflict with the traveling attorneys' responsibilities with regard to other witnesses appearing in this Court. Second, we agreed that the interruption of the examination of a witness appearing in this Court should be permitted if necessary to present Mr. Lovely's testimony on a previously identified date certain. -2-

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Case 1:95-cv-00468-TCW

Document 170

Filed 02/20/2007

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/s/ John H. Roberson JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Tel. (202) 353-7972 Fax (202) 514-8640 Attorneys for Defendant

OF COUNSEL: ARLENE PIANKO GRONER ELIZABETH M. HOSFORD BRIAN A. MIZOGUCHI JOHN J. TODOR SAMEER YERAWADEKAR

February 20, 2007

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Case 1:95-cv-00468-TCW

Document 170

Filed 02/20/2007

Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of February 2007, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO PRESENT THE TRIAL TESTIMONY OF THOMAS DIXON LOVELY BY VIDEO CONFERENCE" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ John H. Roberson John H. Roberson

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