Globe Savings Bank v. United States

61 Fed. Cl. 91, 2004 U.S. Claims LEXIS 152, 2004 WL 1416014
CourtUnited States Court of Federal Claims
DecidedJune 24, 2004
DocketNo. 91-1550C
StatusPublished
Cited by14 cases

This text of 61 Fed. Cl. 91 (Globe Savings Bank v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Globe Savings Bank v. United States, 61 Fed. Cl. 91, 2004 U.S. Claims LEXIS 152, 2004 WL 1416014 (uscfc 2004).

Opinion

ORDER

LETTOW, Judge.

Trial on damages in this Winstar-related case1 is scheduled to commence on July 12, 2004.2 In preparation for that trial, plaintiffs (“Globe and Phoenix” or “Globe”) have filed several motions raising evidentiary and procedural issues. The motions are styled as follows: (1) Plaintiffs Globe and Phoenix’s Motion to Introduce Deposition Testimony of Government Official Jack T. Reidhill (“Pis.’ Reidhill Mot.”), (2) Plaintiff Globe and Phoenix’s Motion to Exclude the Testimony of Defendant’s Proffered Expert Witness David J. Ross (“Pis.’ Ross Mot.”), (3) Plaintiffs Globe and Phoenix’s Motion to Preclude the Government’s Newly Disclosed Fact Witnesses from Testifying at Trial (“Pis.’ New Witnesses Mot.”), and (4) Plaintiffs Globe and Phoenix’s Motion for Authorization to Take the Deposition of Newly-Disclosed Defense Witness Harry Potter (“Pis.’ Potter Mot.”). This order addresses and rules on each motion in turn.

I. The Reidhill Motion

Globe seeks to introduce as substantive evidence at trial portions of a “common issues” deposition given in 1998 by Jack T. Reidhill. At the time of his deposition in 1998, “Mr. Reidhill was employed as head of the Policy Research Section of the FDIC [ie., the Federal Deposit Insurance Corporation].” Def.’s Opp’n to Pls.’ Reidhill Mot. at 4 (citing Pls.’ Reidhill Mot., Ex. A at 82) (Common Issues Deposition of Jack Reidhill (Mar. 26, 1998)). Globe contends that Fed.R.Evid. 801(d)(2)3 and Rule 32(a)(2) of the Rules of the Court of Federal Claims (“RCFC”)4 each provide independent, and [94]*94independently sufficient, avenues for admission of Mr. Reidhill’s deposition testimony. Pls.’ Reidhill Mot. at 3-4; Pls.’ Reply in Supp. of Pls.’ Reidhill Mot. at 3-7. Globe specifically claims that portions of Mr. Reid-hill’s deposition constitute (1) admissions by the government through statements by Mr. Reidhill as its servant concerning a matter within the scope of his employment and, additionally, (2) statements by a managing agent of the government. In response, the government contends that plaintiffs have made no showing that Mr. Reidhill would be unavailable to testify at trial and that plaintiffs have not overcome the law’s preference for live testimony. Def.’s Opp’n to Pls.’ Reidhill Mot. at 1-3.5 The government additionally maintains that Fed.R.Evid. 801(d)(2) does not provide a basis independent of RCFC 32(a)(2) for admission of deposition testimony as substantive evidence at a trial, id. at 7, and finally that Globe falls short of satisfying the requirements of either rule. Id. at 4-9.

A. Fed.R.Evid. 801(d)(2)

1. Unavailability of the declarant as a witness is not required.

Globe has not attempted to show that Mr. Reidhill is unavailable as a witness at trial. In fact, Globe has listed him on the “may call” section of its witness list. See Pis.’ Globe and Phoenix’s Witness List at 6.6 However, the government is mistaken that Rule 801(d)(2) requires a showing of the unavailability of the declarant.7

The Federal Rules of Evidence divide the exceptions to the hearsay rule8 into two groups based on whether the declarant is unavailable as a witness. See Fed.R.Evid. 804 advisory committee’s notes, Note to Subdivision (a) (1972 Proposed Rules). First, Rule 803 contains twenty-three exceptions for which unavailability is not required, premised on the theory that the circumstances under which the listed types of statements are made lend a sufficient assurance of trustworthiness. Fed.R.Evid. 803 advisory committee’s note (1972 Proposed Rules). Second, Rule 804(b) lists five types of statements that are admissible only if the declarant is unavailable as a witness, demonstrating a preference for live testimony but not to the point of an exclusion of the evidence if the declarant is unavailable. Fed.R.Evid. 804 advisory committee’s note, Note to Subdivision (b) (1972 Proposed Rules).

Statements denominated as “admissions by a party-opponent” are not contained in either of the foregoing groups of exceptions to the hearsay rule. That is because “admissions are outside the framework of hearsay exceptions, classed as nonhearsay, and excluded from the hearsay rule,” as a result of the operation of the adversary system. 2 Charles McCormick, McCormick on Evidence § 254, at 137 (John W. Strong ed., 5th ed.1999) (hereafter “McCormick on Evidence ”). See also Fed.R.Evid. 801(d)(2) (providing that an admission by a party-opponent is “not hearsay,” quoted in full supra, at 93 n. 3). As Professor Wigmore explains, admissions “pass the gauntlet of the hearsay rule,” [95]*95which requires that extrajudicial assertions be tested by cross-examination, because the declarant, in the circumstance of making an admission, is “the only one to invoke the hearsay rule and because he does not need to cross-examine himself.” 4 John Henry Wigmore, Evidence in Trials at Common Law § 1048, at 4 (James H. Chadbourn ed., 1972) (hereafter “Wigmore on Evidence”). “In other words, the hearsay rule is satisfied; [the declarant] has already had an opportunity to cross-examine himself ...; or (to put it another way) he now as opponent has the full opportunity to put himself on the stand and explain his former assertion.” Id. at 5 (italics omitted). See also 2 McCormick on Evidence § 254, at 135-37 (discussing the major theories on admissions as nonhearsay). As Professor McCormick opines:

Regardless of the precise theory, admissions of a party are received as substantive evidence of the facts admitted and not merely to contradict the party. As a result, no foundation by first examining the party, as required for impeaching a witness with a prior inconsistent statement, is mandated for admissions.

2 McCormick on Evidence § 254, at 137 (footnotes citing authorities omitted). Similarly, “unavailability is not required of admissions.” Id. at 139. See also Coleman v. Wilson, 912 F.Supp. 1282, 1295 n. 4 (E.D.Cal. 1995) (“if a written statement is admissible under the evidence rules, it is not excludable on the grounds that the statement could also have been presented in the form of live oral testimony”) (citing In re Adair, 965 F.2d 777, 779 (9th Cir.1992)), appeal dismissed, 101 F.3d 705 (9th Cir.1996) (table); 4 Wigmore on Evidence

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Bluebook (online)
61 Fed. Cl. 91, 2004 U.S. Claims LEXIS 152, 2004 WL 1416014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/globe-savings-bank-v-united-states-uscfc-2004.