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

Case 1:01-cv-00459-GWM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) INTERNATIONAL DATA PRODUCTS ) CORPORATION ) ) Plaintiff, ) ) vs. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

No. 01-459C (Judge George W. Miller)

PLAINTIFF'S OPPOSITION TO DEFENDANT' S MOTION IN LIMINE Plaintiff International Data Products Corporation opposes defendant The United States' motion in limine as it relates to the admission of certain affidavits signed by four employees. Plainly, these documents are admissible.1 First, the affidavit of David Costello is not hearsay; it fits squarely within the requirements of Fed. R. Ev. 801(d): (d) Statements which are not hearsay. -- A statement is not hearsay if ­ (1) Prior statement by witness. -- The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive As provided in this rule, Mr. Costello will testify at trial, and the Government will invariably imply that his testimony is inaccurate. There is no question, then, that Mr. Costello's

IDP does not intend to call Mr. Oyer, and therefore, that part of the Government's motion in limine is moot. 1

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affidavit is admissible under Fed. R. Ev. 801(d). Second, Mr. Costello's affidavit, and the remainder of the documents which are brief affidavits by other employees, all are admissible under Fed. R. Ev. 807, which permits documents having appropriate guaranties of trustworthiness, even if they do not meet the explicit requirements of another hearsay rule. In this case, the affidavits at issue are no more than time sheets, though in the form of affidavits. They are a data compilation made at or near the time by a person with knowledge, and kept in the regular conduct of a business activity. While these documents were not created in the regular course of IDP's business, because the nature of IDP's business did not require time sheets, that is the only reason that these documents do not fit squarely within the business records exception to the hearsay rule: (6) Records of regularly conducted activity. -- A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ''business'' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Fed. R. Ev. 803(6). The failure to meet every precise technical requirement of Fed. R. Ev. 803(6), however, does not cause the exclusion of these documents because Rule 807, the hearsay rule's residual exception plainly applies here: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, 2

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if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. Fed. R. Ev. 807. Here, these statements are offered as evidence of a material fact. The statements are more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts given the passage of time and the fact that the three of the affiants are long gone, and their present whereabouts are unknown. Finally, the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statements into evidence. The existence of these statements are of no surprise to the Government. They were provided to the Government years ago as part of the claim underlying this action, and at no time thereafter did the Government ask to test the validity of these statements. Clearly, Rule 807 applies. In FTC v. Kitco of Nevada, Inc., 612 F. Supp. 1282 (D. Minn 1985), for example, the same Government which now seeks to exclude these affidavits successfully fought to have similar affidavits accepted into evidence. There, the FTC presented signed and sworn affidavits of persons as proof of certain consumer purchases and injury. There, the Court permitted the use of these affidavits, explaining as follows:

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FRE 803(24)2 provides a residual exception to the hearsay rule where the proffered evidence has "circumstantial guarantees of trustworthiness" equivalent to those inherent in the other exceptions to the hearsay rule. In addition, the court must determine that: 1) the statement is offered as evidence of a material fact; 2) the statement is more probative on the point than any other evidence which the proponent can procure through reasonable efforts; and 3) the general purpose of the rules and the interests of justice are best served by admission of the statement into evidence. Finally, the proponent must provide sufficient notice to the adverse party in advance of trial. The FTC satisfied this last requirement by bringing a pretrial motion in limine which the court denied. . . . . These affidavits are more probative on the issue of total liability than any other reasonably obtainable evidence. It would be too expensive and time consuming to call witnesses from all parts of the United States merely to establish total consumer injury or even to take each consumer's deposition. In this case, corporate records were unavailable. Thus, unless the affidavits are admitted into evidence, there will be only limited proof of total injury suffered by the innocent purchasers. Accordingly, the interests of justice are best served by admitting the 15 consumer affidavits into evidence. FTC v. Kitco of Nevada, Inc., supra, 612 F. Supp. at 1294-95. The law, as described in Kitco, is clear. The four affidavits at issue here may not formally meet one (but only one) of the many requirements of the business records hearsay exception, but they satisfy all other requirements, and these documents are just as trustworthy as the time sheets which they replace. Indeed, all were provided under a sworn oath. Most importantly, they "are more probative on the issue of total liability than any other reasonably obtainable evidence. It would be too expensive and time consuming to call witnesses from all parts of the United States" even if they could be found, which they cannot, "merely to establish total . . . injury." Id. Third, and in any event, Mr. Costello's affidavit and the remainder of the affidavits are

Fed. R. Ev. 807 previously had been set out as Fed. R. Ev. 803(24). The rules are the same; they were just renumbered. 4

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admissible under Fed. R. Ev. 612, as writings which Mr. Costello will use to refresh his recollection at trial. The application of Fed. R. Ev. 612 can best be judged at trial, and cannot be approached in a motion in limine. Conclusion For the foregoing reasons, IDP requests that the motion in limine be denied.

Respectfully submitted, s/Edward J. Tolchin Edward J. Tolchin Fettmann, Tolchin & Majors, P.C. 10509 Judicial Drive, Suite 300 Fairfax, Virginia 22030 (703) 385-9500 (703) 385-9893 (Fax) Counsel for Plaintiff Certificate of Service I hereby certify that on this 8th day of September 2005, the foregoing Plaintiff International Data Products Corp.'s Opposition to Motion in Limine was filed electronically with the Court and served on all counsel of record by the same means. s/Edward J. Tolchin Edward J. Tolchin

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