Free Motion in Limine - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) STOCKTON EAST WATER DISTRICT, ) et al., ) ) Plaintiffs, ) No. 04-541 L ) v. ) Judge Christine Odell Cook Miller ) UNITED STATES, ) ) Defendant. ) ____________________________________) DECLARATION OF JENNIFER L. SPALETTA I, Jennifer L. Spaletta, pursuant to 28 U.S.C. § 1746, hereby declare: 1. I am an attorney for Plaintiffs in this case and was the attorney primarily

responsible for the depositions of witnesses identified by the United States, including most of the individuals now identified by Defendant as expert witnesses. 2. At the time that these individuals were deposed, they had not been identified as

experts and the Defendant had not raised the "impossibility" or sovereign acts defense in this case. 3. After the Court's ruling on Summary Judgment, I spoke to counsel for the United

States, William Shapiro, on numerous occasions to request that either Mr. Shapiro make the individuals identified as experts available for deposition or stipulate that they not be allowed to provide FRE 702 testimony or opinions related to "reasonable" operations or "impossibility." The first such occasion was in early June 2006. I followed up with an e-mail on June 26, 2006 (attached hereto as Exhibit A). These discussions continued throughout the summer without a commitment from Defendant's counsel. I confirmed this request to Mr. Shapiro by letter of July

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19, 2006 (Exhibit B hereto). Ms. Tardiff, counsel for Defendant, refused the request by letter of July 28, 2006 (Exhibit C hereto). 4. We continued to confer with Defendant's counsel about this issue in telephone

conferences and by e-mail. At the meeting of counsel on September 11, 2006, we again requested that Defendants either make their identified experts available for deposition or stipulate that they may not testify as to matters covered by F.R.E. 702 at trial. Defendant's counsel refused this stipulation and further refused to make the identified experts, other than Ms. Manza, available for deposition prior to trial.

I declare under penalty of perjury that what I have said in this declaration is true and correct.

Executed on September 29, 2006

s/ Jennifer L. Spaletta Jennifer L. Spaletta

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EXHIBIT A

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From: Jennifer L. Spaletta Sent: Monday, June 26, 2006 11:56 AM To: '[email protected]' Cc: Jeanne Zolezzi; 'Roger Marzulla'; [email protected] Subject: SEWD et al. v. US Dear Bill: Thank you for your phone message. I am preparing a stipulation to reflect expert disclosures by July 20, rebuttal expert disclosures by August 20, and expert depositions completed by September 20th. I will also include our agreement about the scope of the liability trial. I will forward to you for review. One outstanding issue is the matter of your disclosure of current employees and retired annuitants as experts. It is our position that any opinion testimony on the technical issues surrounding reasonableness or impossibility is expert testimony. If it comes from a current employee such as Peggy Manza, she must be disclosed as an expert. While she may not be required to have a formal expert report, any information she will rely on that has not already been disclosed, must be. Also, if the opinions are to come from a retained or specially employed person, the disclosure must include the required expert report. We consider the retired annuitants that you have hired to provide testimony in this case to be specially employed for that purpose, requiring an expert report for any opinions they will provide at trial. For example, if Roger Patterson will testify that there was no possible or reasonable operation of the CVP in a given year that would have provided more water to Plaintiffs, he needs to have an expert designation and supporting report for that opinion. Please let me know if you agree or disagree so that we may either include our agreement in the stipulation, or we can proceed with an appropriate motion. Thank you, Jennifer L. Spaletta

HERUM CRABTREEBROWN
2291 W. March Lane, Suite B-100 Stockton, California 95207 Phone:(209) 472-7700 Fax:(209) 472-7986 [email protected]

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EXHIBIT B

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EXHIBIT C

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