Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

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NO. 95-39 C May 17,2005

Ancbor Savings Bank, FSB,
Plain t~g,

United States o f America,
Defendant.
ORDER GRANTING-IN-PART PLAINTIW'S MOTION TO ADMIT DEPOSITION TESTIMONY AS SUBSTA-NTIVB EVIDENCE
On Ape1 14,2005 plaintiff filed a notion for leave to present substantive evidence at trial by way ofthe deposition testimony of five government employees: Walter Amend,Martin Lavelle, James Meyer, Edward O'Connell, and Michael Simone. Plaintiff contendsthat the discreetportions of the deposition testimonies it sceks to introduce all regard matters that were within the scope of thc individual deponents' employment with the government. Accordingly, plaintiff invokes Rule g01(d) of thc Federal Rulw of Evidence, incorporated by refmence into Rule 32(a)(l) of the Rules of the Court of Federal Claims, as the basis for admission. Despite a well-established body of law that supportsplaintiffs position, defendant has broadly objected to the plaintiffs motion. With one exception,defendant's objections do not accord with the rules of this court, the Fdcral Rules of Evidence, or pe~suasivc case law from this court directly on point.

Deposition testimony i s generally inadmissible at trial because, in many (if not mast) circumstances it is heakay.' However, the Federal Rules of Evidence identify certain types of statements that, although made by a declarant outside of trial testimony, arc not hearsay. See Fcd. R.Evid. 801(d). Among these "non-hearsay" types of statements are those that fall under the rubric of admissions by a party-opponent, including statements by the agents or employees of a partyopponent. Specifically,

A statement is not hearsay i f . . . [t]he statement is offcrcd against a party and is . . . a statement by the party's agent or servant concerning a matter witfin the scope of the agency or employment, made during the existence of herdationship.. . .The contents

a

rrrHearsay' a statement, other than one made by the declarant while testifying at the trial or is heasjng, offacd in evidence to prove thc truth of the matter asserted." Fed. R.Evid. 801(c).

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of the statement shall be considered but are not alone,sufficient to establish the . .. agency or employment relationship and scope thereof.
Fed. R.Evid. 801(d)(2) (emphasisadded). When these conditions ate satisfied, the prior statements (here, deposition testimony) are demed to be non-hearsay and are arimjssible at trial (provided, d course, that the statemmts themseIvcs do not conflict with other applicable rules of evidence).

There are othcr ci,rcumstancesjn which deposition testimony might be admissible at trial
evm if the testimony is hearsay, but those circumstances are not governed by Fed. R. Evid. 801(d). Instead, they are exceptions to -the "hearsay rule" governed by Rule 804. As a predicate to the admissibility of deposition testimony under Rule 804, and unlike the requirements of Rule 801, the party seeking to admit the prior statement must first demonstrate that the dcctarant i s ''unavailable'' as awimess. Compare Fed. R. Evid. 804@)(1) (noting that deposjtion testimonyis admissibleif the

decl&mt is now unavailable as a witness and the party against whom the testimony is now offered had an oppodunity and motivc to develop the testimony at the t m of deposition) with Fed. R.Evid. ie 801 (no requirement o f witness unavailabilily or adverse party's opportunity to develop tes6mony).
Here, plaintiffclearly rclies on Fed. R. Evid. 801(d) as the grounds for admittingportions of the five pioffwd deposition testimonies. See, e.g,, Pl.'s Mot. for Leavc to Present Substantive Evidence by Way of Deposition Test., filed Apr. 14,2005 at 1 ("Accordingly, the depositions are admissible as party admissions under Federal Rule ofEvidcnce 801(d)(2)@) and RCFC 32(a)(l)."). Therefore, provided plaintiff can demonstratethat the designated portions of the depositions satisfy the conditions of Rule 801(d), that testimony would ostensibly be admissible at trial. See Fed. R. Evid. 801(6); RCFC 32(a)(1).

I. plaint if'^ Motion Was Not U~ltimely

Defendant's first challenge to plaintiffs motion is that it is untimely because this court ordered that any motions plaintiff filed pursuant to RCFC Appendix A, f 15 be filed no later than March 1,2005. See Initial Pre-Trial Scheduling Order, filed January 14,2005, at f 4. Defendant con tends that plaintiffs instant motion was filed six weeks after this deadline and thaefire failed to conform to the c u t s order. This aqjumerit, however, wholly overlooks the fact that plaintiffs or' instant motion not the type of motion filed pursuant to 15.
Paragraph 15 by its own terms does not apply to deposition testimony that is presented at trial . pursuant to Fed. R. Evid. 80 1(d), i.e., deposition testimonythat i s characterized as non-hearsay(md includes statementsbythc agcnt or employee ofaparty-opponent). SeeRCFCApp.A, 7 lS(b)("Any party intending to present substantive evidence by way of deposition testimony, other than as providedb~ FederalRule ofEvidence 80If~& shall serve and file a separate motion for leave to file the transcript of this testimony.") (emphasis added). Defendant's citation to 15 in its opposition to p l ~ n t i f f smotion conspicuously overlooks this qualification of f 15's scope.2 See

The emphasized languagc of 7 15 above is specifically called to the parties' attention to illustrate a fundamental point that the court hopes to impress upon counsel. Defendant's briefin opposition to plaintiffs motion quotes 115 to support its arguments. See Def.3 Opposition at 4. However,

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Def.'s Clpposjtion to P3.'s Mot. at 4. defendant,has substituted an ellipse (". . .") for the language the court emphasized above-notably, the specific languagewhich insmcts that 7 1.5shall not apply to statements presented under Federal Rule of Evidence 801(d). In this case, that substitution obfuscated the provision of the court's rules that is most relevant to defendant's argument. For completeness, RCFC Appendix A, 7 15(b) states that:

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Any p z l y intending to present substantive evidence by way of deposition testimony, orher than as "providedb.v Federal Rule qf Evidence 801(d), shall serve and file a separate motion for leave to fife the transcript of this testimony. The motion shall show cause why the deposition testimony should be admitted and identify specifically the portions o f the transcripts(s) the p&y intends to use at trial. See RCFC 32(a)(2) & (3). If the motion is ganted, only those portions of the transcript may be filed.
RCFC App. A, 7 15 (emphasis added). Clearly, if deposition testimony is offered under the provisions of Federal Rule of Evi dencc 501(d), then the party is not required to file a 15 motion for leave to file the transcript of that testimony. In such a case, fl 15 simply does not apply. Defendant's omission-and replacement with an ellipse indicating the o m i s s i ~ icritical s because the substitution of an ellipsc for other language is a deliberate act, It would be one thing here jf defendant had merely failed to identify the relevant, on point, provision in this court's rules, That alone might bc forgjvable as a mere oversight. It m g t be excusable if defendant had perhaps ih misinterpreted an ambiguous provision i this court's rules. However, it i s an entirely different n matter where, as here, defendant has gone ourtof its way to remove the relevant language and reploce it with an ellipse. In that situatio.0, counsel's conduct borders upon flagrant violation of this court's Rule 11. In part, that rule states: "By presenting to the court a pleading, written motion, or other paper, an attorney . . . is cextifylng that to the best of that person's bowledge, information, and belief, formed after an inquiv reasonable under the circumstances, it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless-increasehthe cost of litigation [and] the . . . legal contentions therein are warranted by existing law." RCFC Il(b).
Zealous advocacy on behalf of an attorney's cliwt is a com~nendable practice and quarrels i litigation resulting from good-faith differences betwecn the parties are the standard. However, n f i a e is a line in the sand that h e parties m s not cross; for if they do, it is at their own peril. This ut court does not and will not tolerate scorched-earth Jitigation tactics that not only have no basis i~ the . applicable law, but also hplicitly ignore or deliberately mischaracterize what the law actually is in an attempt to either mislead the court or unnecessarily antagonize opposing counsel. Such behavior is manifestly unprofessional, violates the rules of this c o ~ and is sanctionable under Rule 11.See, , e.g.,SchreiberFoods,Inc. v. Beairice Cheese, Inc., 402 F.3d 1198,1204 n.6 (Fed. Cir. 2005) (noting that substituting an ellipse for a controlling portion of a quoted opinion "misquotes the opinion'' and that "such misrepresentations are sanctionable"); Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1353-57 (Fed. Cir. 2003) (affirming sanctions against an attorney who had, "in quoting &om and citing published opinions, . . . distorted what the opinions stated by leaving out significantportiolls of the citations or cropping one of them, and failed to show that she and not the couxt ha[d] supplied the emphasis in one of them').

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Since 7 15 does not address dcposjtion testimony of the type here that is off& under Fd. R,Evid, 801(d), plaintiff was not obligated to filc a7 1 5 motion by March 1.See also Globe Savings Bank, FSB v. United States, 61 Fed. C1. 91, 96 (2004) (''That the requirements of Fed. R. Evid, 8 1 d ( ) are independent of those ofRCFC 32(a) is also indicated in this court's case management 0()2 procedures, which spccjfy that a scparate motion be filed for admission of a deposition pursuant to RCFC 32(a) but not under Fed. R. Evid. 801(d)(2).'3. If there w s any need for plaintiff to filethe a instant motion at all, it would fall under thc classification of an "Other Pre-Trial Motion" that a e PreTrial Scheduling Order required plaintiffto file no later than April 14,2005, which it did. See b i t i d Pre-Trial Scheduling Ordm at 1 7.
2. Plaintzfis Nut Required to Denzonstrote the "Unavailabilip " of the Deponents
The second challenge that defendant raises to plajntiffs motion is that plaintiff has purporicdly failed to "show 'cause' for using the designated depositions as substantive evidmce." Def.'s Opposition at 4. Defmdant again relies on RCFC App. 21L, 7 15, which requires that *e attendant motion "shall show cause why the deposition testimony should be admitted." As noted 1 above, however, 1 1.5does not apply to deposition testimony proffered under the guise of Fed. R. Evjd. 801(d). Plaintjff is therefore under no 7 15 obligation to "show 'cause"' and Rule 801(d) itself contains no such requirement.
Notwithstanding the fact that 15 simply does not apply to plaintiffs instant motion, defendant challenges that plaintiff has failed to show whether any of the five individuals whose deposition testimony it seeks to introduce as substantive evidence will be "unavailable" for trial. Def.'s &pp. at 4. As noted abovc, however, the Fedcral Rules of Evidence do not require a party to demonstrate a declarant' "unavailability" when introducing out+ f-court statements that are deemed s to be non-hearsay under Rule 801(d). See Fed. R. Evid. 801(d). Unavailabilityis onlyxequired w e hn such statements, including deposition statements, are presented as evidence under one of the "exccptions" to the hearsay rule. See Fed. R. Evid. 804. This identical issue was taken up persuasiveIy by two other recent Winstar opinions in this court, Gbbe Suvings, 61 Fed.C1. at 94-95 and Long island Savings Bank, FSB v. Wailed States, 63 Fed. C1. 157 (2004). The analyses embodied in these opinions are thorough, persuasive, and accurate statements of the law and entirely consistent with this court's own intapretation of the Federal Rules of Evidence.
3. gthe Deposilions Are Admissible under the Federal Rules ofEvidence, 13ren mere Are No Other Requiremenfifor Admissibilizy under RCFC 32

Defendant also invokes RCFC 32(a)(3) to preclude plaintiffs proffered depositiontestimony because, in the alternative to not demonstrating the declarants' %unavailability," plaintiff has not shown that "exceptional circumstances exist as to make it desirable, in the interest ofjustice and with due regard to the importance of presenting the testimony of witnesses orally in open court" to admit the deposition testimony. DeLYs Opposition at 4 (quoting RCFC 32(a)(3)). As the c o w notedabove, however, if plaintiffs proffered deposition lestimony satjsfies the requirements of Federal Rule of Evidence 801Id) then the evidence is admissible and the court need not resort to the catch-all provision in Rule 32(a)(3) to evaluate the admissibility of the proffered evjdmce.

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The use of depositions in proceedings before the Court o f Federal Claims is governcd by RCFC 32. Rule 32(a), in t~m, establishes a series of alternative criteria in which deposition testimony may be used:
At the trial . .. any part or all of a deposition, so far as admissible under the rules of evjdence applied as though the wjtness were then present and testifying,may be used against any party who was present or represented at the taking of the deposition or who had reasonable nohce thereof, in accorclance w 2 i W o the following f
prpvirionr :

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for ony other purpose by zhe Federal IZules o Evidence. f

RCFC 32(a) (emphasis added). Therefore, if deposition testimony is admissible mdar a partisulsr rule of the Federal Rules of Evidacc, it satisfies the rules of this COW is admissible at trial. and Since plaintiffs proffered evidence is arguably admissible under the provisions of Rule 801(d), it would be admissible at trial under Rule 32(a) if jt satisfies the relevant standards under the Federal Rules of Evidence.
Rule 32 contains othw provjsions that permit the admission of deposition testimony at trial, but these provisions are alternatives to Rulc 32(a)(l); The alternative provisions act independent of the Federal Rules of Evidence and do not impose additional, burdens upon the party seeking to introduce deposition testimo.ny that is already admissible under the Fcderal Rules and, thcrcfore, Rule 32(a)(l). This is apparent fiom the language i RCFC 32(a), which instructs that dqosition n testimony is admissible if it is "in accordance with any of the following provisions"--it does not require co,mpliancewith all of them, or more than one o f t h m . Defendant's argument, however, would have this court invoke one of those altcmative provisions ofRule 32 even though Rule 32(a)(l)--admissibilityunder the Fedaal Rules ofEvidence --is already satisfied. Jndeed, dcfendmt's contention that plaintiff m s demonstrate "exceptional ut circwnstances" in the absence of establishing "unavailability" relics on a catch-all provision that Rule 32 provides in the evcnt that no other enumerated ground for admissibility in Rule 32(a) can be satisfied. See RCFC 32(a)(3)v) (allowing admission of deposition testimony "upon application and notice, that such exceptional circumstances exist as to make it desirable , . . to allow the dcpositjon to be used" in the event that other provisions of Rule 32(a) cannot be invoked). As this court has notad:

"[Tlhe Federal Rule of Evidence . . .providc the general rules regarding the use at trial ofdepositions. . . . [RCFC] defines some circumstances i which adeposition 32 n is admissible, leaving most issues of admissibility to the Federal Rules ofEvidence." 8A ~ r u R L E ALAN WRIGHT, s ARTHUR MILLER& RJcHARD L. MARCUS, R. FEDEUL PJZACTICE AND PROCEPURE 2 141, at 157, 9 2 142, at 15 8 (2d cd. 1.994). Fed. R. 4 Evid. 81d()) 0()2@ and RCFC 32(a) regulate the admissibjlity of depositions in different ways by allowing admission in differing circumstances:

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To some extmt, th.e Rules of evidence expand the admissibility of depositions beyond areas that are governed by mle 32, or regulate admissibility with greater detail. Under the Federal Rules of
Evidence, for example:

Admjssjons at a deposition by a party-opponent's agent or swants-other than that party's officer's, directors, managing agmts, and Rule 3O(b)(6) or 31(a) deponents-are admissible under Rule 8 1 d ( ) ) to the extent they concern matterswithinthc scope 0()2@ of the agency or employment.
JAMES WM.M.ooRE,

MOORE'SF E D E R A L P R A 9 32.02[3], at 32-1 t 32-17 (3d ~CE 6o

ed. 2004). Globe Savings, 61 Fed. CI. at 96 (footnote and some citations omitted). It is therefore wellestablished that plaintiff may admit deposition testimony at trial that satisfies the requirements of Rule 801(d) (and any other applicable evidcntiary mle) and, if thosc requirements are satisfied, therc are no other conditions to admissibility under Rule 32.
Defendant also raises a policy argument to the effect that "[tlhe admission of deposition testimony, without a showing of unavailability or exceptional circumstances, is contrary to the longstandin.g prefmence for live testimony at trial." Def." Opposition at 5. Furthennore, defendant w m s that granting plaintiffs motion here might lead to a ''trial by deposition." Id..at6 (quoting Kolb v. County ofSufoolk, 109 F.R.D. 125 (E.D.N.Y. 1.985). These arguments wme specifically taken up by the Court of Fcdcral Claims in Long Island Savings and roundly rejected. See Long Island Savings, 63 Fed. C1. at 163-64. This court adopts the pmsuasive analysis in that opinion and, similarly, reject's defendant's arguments.

Furthermore, defendant's reliance on Kolb in this case is misplaced. First, Kolb took up the issue of whether the entire deposition testimony of eight deponents should bc cntered into evidence. b i b , 109 F.R.D. 127. That is not the case hcre, however, where only discreet portions of certain at depositions havc been proffcrcd by plaintiff. But even j f plaintiff were to offer entire depositions as substantive evidence, that practice would seem to be permissible under this court's rules, which expljcitly permit the introduction o f "any part or aU o a deposition." RCFC 32(a). Tbat specific f issue is not before this court, however, and so it reaches no decision on the matter.
Defendant also citcs a case fiom this court for the proposition that the court's decisions in Globe Savings and Long Island Savings "undermine the long-standing preference of this Corn for live testirnonyrather than trial by deposition." Dcf.'s Opposition at 8 (c,itingSpeckv. United States, 28 Fed. C1. 254, 294 (1993). Speck is inapposite to this case, however, because it involved the admissibility of deposition transcripts under Fed. R. Evid. 804, not Rule 8Ol(d) which is at issue in this case. The coutt in Speck declined to admit in a Court of Federal C a m proceeding trial lis

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testimony givm by several expert witnesses before the United States Tax Court nearly 16 years a l j a . Specifically,the court noted that, pursuant to Fed. R. Evid. 804, the offeringparty had failed to demonstrate the "unavailabjli~' the witnesses. Since there js no "unavailability" requirment of under Rule 8 1 d , the Speckdecision is not at all applicable to the instant m t e and certainlymay 0() atr not be relied uuon as counter-authoity to the very pmuasive opinions in Globe Savings and Long Islond Savings.
4, /I Ij.Unclear W3etherPlaintifs Proflered Depositioa TesiimosrySatisfies ihe ConditionsofRule

801(d)
Rule 8 1 d ( ) identifies three requirements for an out-of-court statement to be admissible 0()2 as non-hearsay. First, the statmcnt must be "offered against a party." Fed. R. Evid, 801(d). That js certainly satisfied here because plaintiff seeks to admit ihc proffered testimony against the United States,the defendant i this action. "TO qualify as an admission [under Rule 801(d)], no specific n 'against interest' mmponent is required." Giobe Savings, 61 Fed. C1. at 97 (quoting Aliotta v. Nat 'I R.R.Passenger COT., 3 15 F.3d 756,761. (7th Cir. 2003)). Rule 801(d) has no attendantrequirement that the proffered statement be "incu'lpatory." Id, (quoting United S~ares McGee, 189 F.3d 626, v. 631 (7th Cir. 1 999)).

Second, the statemcnts m s have been made during the existence of the employment ut Fed. R. Evid. 801(d)(2). There does not scm to be any question here that the five deponents were in fact g o v m e n t employees at the time they gave their deposition tsstirnony. Finally, the statements must concern a "matter within the scope of thc agency or employment" of the deponent. Id. To this final element, defendant raises a legitimate challenge that certain of plaintirs proffered deposition statemcnts did not, in fact, concern mattm wjthia the scope off the deponents' employment. See Def's Opposjtion at 8-10,Whetha or not the statements concern matters within the scope of the deponents' employment is a question of "admissibility'*for the court to determine under Fed. R. Evid. 104(a). See CHRISTOPHER B. MUELLER LAIRD & C. KIRKPATRICK, EVIDENCE g 8.32 at 895 (2d ed. 1999). In this case, the burden is on thc plaintiffto establish that the proRered statements satisfy the scoperequiremmt.
T h e problem in the instant case is that the court I~as very ljttle information regarding the scope of each of the five deponents' e r n p l o ~ mwith defendant. Furthermore, the court has not had t the opportunity to evaluate each of the proff'ered statements to compaxe them with the individual ie deponent's scope of employment. The court is therefore in no position a t this t m to allow the wholesale admission of all the plaintiffs proffered evidence; such a decision would be premature. That kind of determination can only be made upon plaintiffs dcrnonstration of an adequate foundation for each of the proffmcd statements. Tl~e appropriate timc for laying that foundation and making subsequent decisions on admissibility will be at trial. Defendant will of course have the opportunity to raise appropriatc objections to plaintiffs evidence, both on the grounds that certain statements may be beyond the scope of the deponent's employment or based on some other applicablcmleof evidence. See RCFC 32(a) (noting that d q o s i tioa testimony otherwise admissible under that mle must also be "admissible under the rules of evidence applied as thou& the witness were then present and testifying"). Defendant has requested the opportunity to raise Gch objections

e

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on before May 17,2005 (the date of the final pre-trial conference in this case), and that request i s apprqpriate. In framing these objections, however, defendant is reminded that "Lilt is a 'widely accept4 rule that admissions of a party-opponent under Rule 801(d)(2) are accorded generous treatment in determinations of admjssibility.'" Globe Savings, 61 Fed. C1. at 96-97 (quoting Aliotta v. Nut '1R.R. Pasengm C o p , 3 15 F.3d 756,761 (7th Cir. 2 0 ) ; see also Long Island Savings, 63 Fod. C1. at 03) 164 (quoting same language), "The only rcqujremcnt i s that the subject matter of the admission match the subject matter of the employee's job description." Globe Savings, 61 Fed. C1. at 97. Furthermore, "[tlhere is no requitemcnt that thc particular agency at which a deponent was employed at tbe time of the deposition match the subject matter of the admissions. The party-opponent is the Ufited States, not a particular agency." Id.
5. Defendan1 May Designnte Additional Deposition TmtimonyAs Needed under Fed. R. Evid. 106

Under Fed. R. Evid. 106 and RCFC 32(a)(4), defendant must have an opportunity determine ifother portions of the proffered deposition testimonies sl~ould be admitted by plaintiff in order also to prcsewe general issues of fairness. Rule 106 embodies the common law ''rule of completeness" and states that:
When a writing or recorded statement or part thereofis introduced by a party, and adverse party may require the introduction at that time of any othm part or any other writing or recorded statement which ought in faimess to be considered contempo~aneously with it.

Fed. R. Evid. 106. As one commentator has noted, this rule "entitles other patties to rquire the proponent, as part of the original presentation, to include other parts of the writing or recorded statement that ought in faimess to be considered with Ulc other parts that the proponent wants to use," MUELLER KIRKPATRICK,EVIDENCE 5 1.17 at 61 (citing Beech Aircrufl Curp. v. Rainey, 488 & U.S. 153 (1988) (out-of-context statement "may creatc such prejudice that it is impossible to repair by a subsequent presentation")).

This mle does not, however, give defendant cnrle blanche to introduce wholesale deposition testimony that it might not othcmise be able to pmffer because of the limitations of the hearsay rules. 'The point of [Rule] 106 is not to insist on completeness as an end in itself, but to allow others to insist on admitting enough to put a statement in context." Id. Accordingly, defendant's opportunity undcr Rule 106 does not permit defendant to designate portions of the deposition unrelated to discrcd issues testimony that are irrelevant or prejudicial, or portions that are wl~olly raised by plajniiff s o m designations.
For the foregoing reasons, plaintiffs motion to admit cextain deposition testimonies as substantive evidence is GRANTED-IN-PART, and the designated portions of plaintiffs proffered depositions will be admissible at trial provided that an adequatc foundation is established and no other rules of evidence preclude admissibility. Defendant shall have the opportunity to both raise relevant objections to particujar designations, and to designate other portions of plaintiffs proffered

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depositions that should in fairness be considered contemporanmusly with plaintiffs submia;ionr. Defendant shall file thesc objections and counter-desipatjons no later than Wednesday, May 25,
2005.

IT IS SO ORDERED.

Judge

k'