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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 00-697C Senior Judge Merow

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S "NOTICE OF DEPOSITION AND TRIAL TESTIMONY DESIGNATIONS" AND, IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE RELIANCE UPON THOSE DESIGNATIONS AS SUBSTANTIVE EVIDENCE PURSUANT TO RCFC 32(a) AND FEDERAL RULE OF EVIDENCE 801(d)(2)

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2001 (202) 434-1675 Dated: February 26, 2007

Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 (206) 359-8419 Phone (206) 359-9419 Fax Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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TABLE OF CONTENTS Page DISCUSSION......................................................................................................................1 I. WE MAY USE ADMISSIONS OF PARTY-OPPONENTS REGARDLESS OF THEIR UNAVAILABILITY OR APPEARANCE AT TRIAL ...........................1 II. THE TESTIMONY OF THE WITNESSES IN WE'S NOTICE IS ADMISSIBLE PURSUANT TO FED. R. EVID. 801(d)(2).........................................3 A. The Government Does Not Dispute That Certain Witnesses Were DOE/NRC Employees and These Designations Are Admissible as Substantive Evidence ....................................................................................3 B. The Testimony of Michael Lawrence, Robert Morgan, Benard Rusche, and Daniel Dreyfus Is Admissible Pursuant to FED. R. EVID. 801(d)(2)(C) .................................................................................................4 C. The Testimony of Edward Benz, Billy Cole, and Patrick McDuffie Is Admissible Under FED. R. EVID. 801(d)(2)(D) Because Contractors Can Be Agents of the Government ................................................................6 III. THE GOVERNMENT'S FOUNDATION OBJECTION REGARDING DOCUMENTS IS WITHOUT MERIT AND WAIVED, TO THE EXTENT THE GOVERNMENT FAILED TO MAKE THE OBJECTION DURING THE DEPOSITION..................................................................................................7 IV. THE GOVERNMENT'S COUNTER-DESIGNATIONS SHOULD BE EXCLUDED TO THE EXTENT THEY GO BEYOND THE RULE OF COMPLETENESS ...................................................................................................8 CONCLUSION.................................................................................................................. 10

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TABLE OF AUTHORITIES Page Cases Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422 (1997)........................................2 Globe Sav. Bank, F.S.B. v. United States, 61 Fed. Cl. 91 (2004) ........................................ 1, 2 In re Pagnotti, 269 B.R. 326 (Bankr. M.D. Pa. 2001) ............................................................8 Kolb v. County of Suffolk, 109 F.R.D. 125 (E.D.N.Y. 1985) ..................................................2 Long Island Sav. Bank, FSB v. United States, 63 Fed. Cl. 157 (2004)................................ 2, 3 PR Contractors, Inc. v. United States, 69 Fed. Cl. 468 (2006) ...............................................2 Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d 1246 (Fed. Cir. 2000)..................................6 United States v. Glover, 101 F.3d 1183 (7th Cir. 1996) .........................................................9 United States v. Soures, 736 F.2d 87 (3d Cir. 1984) ..............................................................8 Weaver-Bailey Contractors, Inc. v. United States, 19 Cl. Ct. 474 (1990) ...............................2 Westinghouse Elec. Corp. v. United States, Nos. 93-445C, 94-446C, 1997 WL 1068204 (Fed. Cl. June 4, 1997) ......................................................................................................6 Yankee Atomic Elec. Co. v. United States, No. 98-126C, 2004 WL 2450874 (Fed. Cl. Sept. 17, 2004)...........................................................................................................................6 Statutes, Regulations, and Rules Fed. R. Civ. P. 32(a)..............................................................................................................3 Fed. R. Civ. P. 32(a)(2) .........................................................................................................3 Fed. R. Evid. 106 .............................................................................................................. 8, 9 Fed. R. Evid. 801 .............................................................................................................. 2, 9 Fed. R. Evid. 801(d)(2) ........................................................................................... 1, 3, 5, 10 Fed. R. Evid. 801(d)(2)(C) ........................................................................................ 1, 2, 4, 5 Fed. R. Evid. 801(d)(2)(D)........................................................................................ 1, 2, 6, 7

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TABLE OF AUTHORITIES Page Miscellaneous 5 Weinstein's Federal Evidence § 801.32...............................................................................2

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 00-697C Senior Judge Merow

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S "NOTICE OF DEPOSITION AND TRIAL TESTIMONY DESIGNATIONS" AND, IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE RELIANCE UPON THOSE DESIGNATIONS AS SUBSTANTIVE EVIDENCE PURSUANT TO RCFC 32(a) AND FEDERAL RULE OF EVIDENCE 801(d)(2)
Plaintiff Wisconsin Electric Power Company ("WE") respectfully submits this response to Defendant's (the "Government's") motion to strike and, in the alternative, motion in limine to preclude WE's reliance upon deposition and trial transcript designations ("Gov't Motion" or "Motion"). For the reasons stated herein, the Motion should be denied. DISCUSSION I. WE MAY USE ADMISSIONS OF PARTY-OPPONENTS REGARDLESS OF THEIR UNAVAILABILITY OR APPEARANCE AT TRIAL WE seeks to admit statements of a party-opponent ­ the Government (i.e., the United States) ­ as non-hearsay pursuant to FED. R. EVID. 801(d)(2)(C) & (D). Pursuant to FED. R. EVID. 801(d)(2)(D), WE may use its designations as admissions of a party-opponent if a designation (1) is offered against a party-opponent, (2) the person's statement concerns a matter within the scope of the person's agency or employment, and (3) the statements were made during the existence of that person's relationship with the United States. See Globe Sav. Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 97 (2004). Generally, WE "need not establish that [a witness's] statement was `authorized' within the meaning of the rule" because "`an agent may make vicarious admissions for his principal whether or not he is
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specifically authorized to speak on that subject.'" PR Contractors, Inc. v. United States, 69 Fed. Cl. 468, 473 (2006) (quoting Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422, 424 (1997)). Pursuant to FED. R. EVID. 801(d)(2)(C), WE may also use statements of a partyopponent if the designation is (1) offered against a party-opponent and (2) the statement by the person is "authorized by the party to make a statement concerning the subject." See also Glendale Fed. Bank, 39 Fed. Cl. at 424. "Authority to make a statement can be bestowed upon virtually anyone, either expressly or implicitly." 5 WEINSTEIN'S FEDERAL EVIDENCE § 801.32[1], at 801-68.1 (2d Ed. 2006). Contrary to the Government's attempt to blur the standard for introducing admissions of a party-opponent, Gov't Motion at 12-15, WE does not have to show the unavailability of any witness or "good cause" to introduce admissions of a party-opponent under FED. R. EVID. 801(d)(2). See Long Island Sav. Bank, FSB v. United States, 63 Fed. Cl. 157, 164 (2004) (noting that a party "need not demonstrate that any of the declarants whose deposition testimony it seeks to admit at trial pursuant to FED.R.EVID. 801(d)(2)(D) will be unavailable as witnesses at trial"); Globe Sav. Bank, 61 Fed. Cl. at 94 ("[T]he government is mistaken that Rule 801(d)(2) requires a showing of the unavailability of the declarant."); cf WeaverBailey Contractors, Inc. v. United States, 19 Cl. Ct. 474, 483 (1990) (noting that FED. R. CIV. P. 32(a)(2) ­ similar to RCFC 32(a)(2) ­ "permits a party to introduce the deposition of an adversary as part of his substantive proof regardless of the adversary's availability to testify at trial") (citation and quotation marks omitted). In this regard, in Long Island Savings, this Court rejected the need to show witness unavailability as well as the rationale in Kolb v. County of Suffolk, 109 F.R.D. 125 (E.D.N.Y. 1985), cited by the Government here for that proposition. Long Island Sav., 63 Fed. Cl. at 163 ("Although the court in Kolb correctly observed that admission of deposition testimony as evidence under FED.R.CIV.P. 32(a) is dependent upon meeting the requirements of the rules of evidence, the court incorrectly -228795-0001/LEGAL13040630.1

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assumed that the reverse is also true.") (footnote omitted). Also contrary to the Government's assertions or preferences, the "common law's preference for live testimony has no bearing on the use of party admissions as evidence." Id. Thus, there is no requirement to show unavailability of a witness to designate testimony of a party-opponent. Nor does a witness's "preferred" live testimony prevent the introduction of party-admissions. WE also takes exception to the Government's assertion that WE's designations are "wholesale" or otherwise "massive," such that they should not be allowed pursuant to RCFC 1. Gov't Motion at 15. WE has marked specific portions of these transcripts as permissible admissions of a party-opponent. The admission of this testimony as evidence is certainly less burdensome than requiring additional live testimony to yet again obtain these admissions. II. THE TESTIMONY OF THE WITNESSES IN WE'S NOTICE IS ADMISSIBLE PURSUANT TO FED. R. EVID. 801(d)(2) A. The Government Does Not Dispute That Certain Witnesses Were DOE/NRC Employees And These Designations Are Admissible As Substantive Evidence

The Government does not contest that the following twelve witnesses were Department of Energy ("DOE")/Nuclear Regulatory Commission ("NRC") employees at the time of their deposition or trial testimony: Mr. Lake Barrett; Mr. Alan Brownstein; Ms. Tammy Croote; Ms. Susan Klein; Mr. Christopher Kouts; Mr. Ronald Milner; Mr. Thomas Pollog; Mr. Peter Rabideau; Mr. Robert Roselli; Ms. Nancy Slater (Thompson); Mr. Victor Trebules; and Mr. David Zabransky. Each of these DOE/NRC employees was deposed about their knowledge and work with either the DOE's Office of Civilian Radioactive Waste Management ("OCRWM") regarding issues within the scope of their duties for DOE's OCRWM or NRC's Office of the Chief Financial Officer regarding issues within the scope of their duties in connection with NRC annual fee amounts charged to operating power reactors. Thus, these designations are admissible as substantive evidence.

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B.

The Testimony of Michael Lawrence, Robert Morgan, Benard Rusche, and Daniel Dreyfus Is Admissible Pursuant to FED. R. EVID. 801(d)(2)(C)

WE offers the testimony of Mr. Michael Lawrence, Mr. Robert Morgan, Mr. Benard Rusche, and Dr. Daniel Dreyfus based on the Government's authorization of a person to make statements on a particular issue. See FED. R. EVID. 801(d)(2)(C). In this regard, the Government identified in interrogatories that Mr. Lawrence and Mr. Morgan were "DOE personnel" that participated in creating the Standard Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste ("Standard Contract") and even quote Mr. Morgan's deposition transcript regarding the Government's asserted position in this litigation. See Defendant's Responses to Utility Plaintiffs' Joint Supplemental Interrogatories Nos. 77, 78, 79, 80, 81 (attached hereto as Exhibit A). WE seeks to introduce testimony regarding Mr. Lawrence's and Mr. Morgan's participation in the creation of the Standard Contract. Furthermore, Mr. Morgan is listed to testify in this case regarding topics covered by his admissions. See Defendant's Final Witness List at 3. In addition, Mr. Rusche was listed on the Government's Witness List and testified on its behalf during the Yankee Atomic trial, supporting the notion that he had the Government's authorization to make statements on a particular issue. See Defendant's Witness List ­ Connecticut Yankee Atomic Power Co. v. United States (attached hereto as Exhibit B); Transcript of Trial Testimony of Benard Rusche, Yankee Atomic Trial, August 3, 2004 (excerpts) (attached hereto as Exhibit C). Although Dr. Daniel Dreyfus held high positions at DOE and the U.S. Senate, including service as the Director of the DOE Office of Civilian Radioactive Waste Management (Presidential appointment & U.S. Senate-confirmed position), Special Assistant to the Secretary of Energy, and Staff Director, U.S. Senate Energy Committee, he was retired at the time of his deposition. See Gov't Motion, Appendix, pages 19-20 (Deposition Testimony of Daniel Dreyfus at 8-9 (May, 15, 2002)). Given Dr. Dreyfus's extensive government service, his testimony evidences all the hallmarks of truthfulness because his Senate-confirmed position indicates that he possessed the -428795-0001/LEGAL13040630.1

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Government's authorization to make statements on a particular issue. WE further notes that Dr. Dreyfus remains listed on WE's Appendix A, Paragraph 15(a) witness list. Therefore, because the Government identified two of these former-DOE personnel (Messrs. Lawrence and Morgan) as having participated in the Standard Contract's creation; quoted Mr. Morgan's deposition in its interrogatories; identified Mr. Morgan as testifying regarding the same topics for which he has made relevant admissions; listed Mr. Rusche and had him testify in the Yankee Atomic trial regarding the same topics for which he has made relevant admissions; and because the extensive government service and testimony of Dr. Dreyfus possessed all the hallmarks of truthfulness, WE's designations are admissible pursuant to FED. R. EVID. 801(d)(2)(C). Notwithstanding the Government's general objection to WE's use of designations (and of Mr. Morgan, in particular), the Government agrees that WE may introduce testimony from Mr. Morgan, but requests that it be allowed to introduce Mr. Morgan's trial testimony from prior trials to avoid testifying in this trial. Gov't Motion at 17-19. WE strongly opposes the Government's request. WE has marked certain testimony from Mr. Morgan based on FED. R. EVID. 801(d)(2) ­ admissions of a party-opponent ­ which rule has neither a requirement that opposing counsel be present for an admission nor one allowing for the marking of counter-designations (as the Government has extensively done here). On the contrary, the Government seeks to have Mr. Morgan's testimony admitted under RCFC 32(a), which rule specifically allows use of a "deposition" only "against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof." The Government has counter-designated testimony of Mr. Morgan from three trials in Tennessee Valley Authority, Yankee Atomic, and Pacific Gas & Electric. First, on its face, RCFC 32(a) related to the use of "deposition" testimony, not trial testimony as the Government apparently seeks to designate in the instant case. Second, WE was not a -528795-0001/LEGAL13040630.1

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party to these trials and, thus, had no opportunity to have counsel present and represented with the opportunity for cross-examination as required by RCFC 32(a). Furthermore, Mr. Morgan is the only witness on the Government's list that could potentially authenticate the substantial number of documents on the Government's exhibit list, which documents were apparently submitted to him when DOE developed the Standard Contract. Thus, WE opposes allowing the Government to submit Mr. Morgan's testimony from prior trials. C. The Testimony of Edward Benz, Billy Cole, and Patrick McDuffie Is Admissible Under FED. R. EVID. 801(d)(2)(D) Because Contractors Can Be Agents of the Government

The Government has opposed the use of Messrs. Edward Benz, Billy Cole, and Patrick McDuffie's deposition testimony because they worked for a Management & Operations contractor to DOE, rather than as a direct employee of the Government. However, FED. R. EVID. 801(d)(2)(D) requires only that an agency or servant relationship exist between the party-opponent and the declarant; it does not require an employeeemployer relationship. In this regard, "an agency relationship can be created by contract." Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1256 (Fed. Cir. 2000) (citation and quotation marks omitted). As the Court noted in Yankee Atomic Elec. Co. v. United States, No. 98-126C, 2004 WL 2450874, at *11 (Fed. Cl. Sept. 17, 2004), the "unique" role of Management & Operations contractors to DOE's mission makes it difficult to distinguish between an employee and a contractor, including in the area of spent fuel removal. ("These contractors were retained under unique circumstances to perform DOE's function, provided critical and essential data and input to DOE, and operate and manage the national laboratories for and on behalf of DOE. In a very real sense, these contractors performed DOE's statutory mission, or at a minimum provided the technical input to perform the same." Id.); see also Westinghouse Elec. Corp. v. United States, Nos. 93-445C, 93-446C, 1997 WL 1068204, at *2 (Fed. Cl. June 4, 1997) ("Unlike a typical Government contract through which the Government obtains -628795-0001/LEGAL13040630.1

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products and services to assist it in carrying out its mission, DOE uses the M & O contract to conduct its mission."). In this regard, Article IV.B.3 of the Standard Contract provides, "DOE may fulfill any of its obligations, or take any action, under this contract either directly or through contractors." Thus, because of the unique contractual relationship, there was an agency relationship between DOE and the contractors for whom Messrs. Benz, Cole, and McDuffie worked. Therefore, their testimony should be admissible pursuant to FED. R. EVID. 801(d)(2)(D). Furthermore, the Government states in its Witness List that Mr. Billy Cole, "based upon his position as a contractor for DOE, will testify about the Government's implementation of the Standard Contract, including the ACR issue resolution process conducted with industry representatives, the issuance and content of the ACRs." See Defendant's Final Witness List at 4. The Government can hardly argue that Mr. Cole's designations are not admissible where it expects Mr. Cole to testify in this case regarding identical matters. III. THE GOVERNMENT'S FOUNDATION OBJECTION REGARDING DOCUMENTS IS WITHOUT MERIT AND WAIVED, TO THE EXTENT THE GOVERNMENT FAILED TO MAKE THE OBJECTION DURING THE DEPOSITION The Government belatedly seeks to lodge foundation and best evidence objections. To the extent the Government failed to make these objections during the depositions, these objections are waived. In particular, the Government asserts that WE's designations are "replete" with testimony concerning documents that are unidentified, but provides only one example in its motion. Gov't Motion at 16-17. The Government's foundation or best evidence objection is either in the testimony designated or it is waived because these objections could have led the questioner to cure the problem claimed in the objection. See RCFC 32(d)(3)(B) ("[E]rrors of any kind which might be obviated, removed, or cured if promptly presented [ ] are waived unless seasonable objection thereto is made at the taking of the deposition."). The one -728795-0001/LEGAL13040630.1

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example provided by the Government in its motion is misleading because the objections as stated in the transcript were "asked and answered" and "vague," not the "foundation" or "best evidence" objections that the Government now belatedly seeks to invoke. See Gov't Motion, Appendix, pages 57-59 (Deposition Testimony of Lake Barrett at 196-198 (Apr. 22, 2002)). The Government failed to preserve its foundation and best evidence objections by failing to seasonably make them at the deposition (at least this portion of it), and, therefore, these objections are waived. To the extent the Government has added new objections in contravention of RCFC 32(d)(3) in response to other portions of transcript pages designated by WE, these objections should be denied as waived for failure to raise them during the deposition testimony.1 IV. THE GOVERNMENT'S COUNTER-DESIGNATIONS SHOULD BE EXCLUDED TO THE EXTENT THEY GO BEYOND THE RULE OF COMPLETENESS WE objects to the Government's counter-designations to the extent these designations go beyond FED. R. EVID. 106, which codifies the common law principle of "completeness." See FED. R. EVID. 106, advisory committee's note ("The rule is an expression of the rule of completeness."). In many circumstances, the Government has counter-designated testimony far beyond that needed to explain and place in context the admissions designated by WE. FED. R. EVID. 106 states: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." See also RCFC 32(a)(4). "The Rule does not require introduction of portions of a statement that are neither explanatory of nor relevant to the passages that have been admitted." United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984); see also In re Pagnotti, 269 B.R. 326, 331 (Bankr. M.D. Pa. 2001) ("[I]t is often perfectly
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Contrary to the Government's concerns, WE has endeavored to include most (if not all) material documents relevant to the designated deposition testimony as trial exhibits. To the extent the Court may find a gap in what WE has provided, WE seeks leave to supplement the testimony pursuant to FED. R. EVID. 106.

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proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.") (citation and quotation marks omitted). Thus, FED. R. EVID. 106 does not invite the wholesale designation of large unrelated blocks of new testimony; "indeed, the proponent of the additional evidence sought to be admitted must demonstrate its relevance to the issues in the case, and must show that it clarifies or explains the portion offered by the opponent." United States v. Glover, 101 F.3d 1183, 1190 (7th Cir. 1996). Generally, where the Government truly has a "completeness" objection pursuant to FED. R. EVID. 106 regarding WE's designated transcript excerpts, it usually indicates this alleged incompleteness by marking the discrete additional lines from a transcript that should be added. Indeed, the Government has done this by indicating the exact lines necessary for completeness in the charts where it states its objection to WE's designated testimony. See Gov't Motion, Attachment A ­ Government's Objections to Designations by Wisconsin Electric Power Co. and Counter-Designations. The Government, however, has also "counter-designated" substantial testimony that extends well beyond the need to complete a particular statement or portion of a transcript. First, these so-called "counter-designations" are inadmissible hearsay because they go far beyond the need to complete the context of WE's designations. FED. R. EVID. 801. Second, the Government often designates testimony for deposition and trial dates for which WE has designated none.2 Ultimately, the Government's lengthy counter-designations, totaling approximately 873 pages, contravene the "completeness" purpose of FED. R. EVID. 106 and should be disallowed. Finally, to the extent that the Court allows any of the Government's counterdesignations, WE requests leave from the Court to object more specifically to these counter2

For example, the Government has counter-designated testimony from the following transcripts for which WE has designated no testimony: Billy Cole's May 13, 2002 deposition transcript; Patrick McDuffie's March 19, 2002 deposition transcript; and Robert Morgan's August 2, 2004 testimony in the Yankee Atomic trial and his June 13, 2006 testimony in the Pacific Gas & Electric trial.

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designations during the post-trial briefing in this case. With regard to the Government's request that "the Court require the depositions to be read into the record and consider the Government's counter-designations from these same depositions," Gov't Motion at 19, WE is mindful that the Court directed the parties to read designated testimony into the record at the trials in Tennessee Valley Authority and Systems Fuels, No. 03-2623C. Although WE respectfully opposes the Government's request, if the Court directs a similar reading of designated testimony in this case, WE is prepared in principle to stipulate that any designated testimony in this case that was already read into the record in the Tennessee Valley Authority and Systems Fuels, No. 03-2623C, cases need not be read into the record again here. CONCLUSION For the foregoing reasons, WE respectfully requests that the Court allow WE's trial and deposition designations pursuant to FED. R. EVID. 801(d)(2), disallow the Government's counter-designations, and deny any out-of-time objections made by the Government regarding foundation, best evidence, or other matters the Government failed to raise seasonably during the taking of a deposition.

Dated: February 26, 2007

Respectfully submitted, s/Richard W. Oehler by s/Donald J. Carney Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 (206) 359-8419 Phone (206) 359-9419 Fax Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2001 (202) 434-1675

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CERTIFICATE OF SERVICE I certify under penalty of perjury that, on February 26, 2007, I caused a copy of the foregoing "PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S `NOTICE OF DEPOSITION AND TRIAL TESTIMONY DESIGNATIONS' AND, IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE RELIANCE UPON THOSE DESIGNATIONS AS SUBSTANTIVE EVIDENCE PURSUANT TO RCFC 32(a) AND FEDERAL RULE OF EVIDENCE 801(d)(2)" 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. Parties may access this filing through the Court's system. s/Donald J. Carney Donald J. Carney

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Page 35 of 36

Case 1:00-cv-00697-JFM

Document 295-2

Filed 02/26/2007

Page 36 of 36