Judge Duval rules – and says so in an Order

No doubt about it, Judge Duval rules his court – and yesterday, he made that perfectly clear in an Order.

IT IS ORDERED that all parties are put on notice that the Court is not pleased with the failure of the parties to meet the deadlines set forth. In addition, concerning the exhibit objections, while the form of the objections filed by Plaintiffs is not in keeping with the normal requirements, the Court will rule on these forthwith. Furthermore, the Court hopes that the United States realizes that the Court will rely on its representation that the objections to Plaintiffs’ exhibits will not be overly burdensome. In the event that the United States’ objections
at trial become overly burdensome, the Court will withdraw its permission to wait until an exhibit is introduced at trial to raise any evidentiary objection the Court may have.

The case is the largest ever for the Government – according to these data posted in February

“At last count, more than 1.6 million images of hard-copy pages had been produced to the plaintiffs and other Katrina litigants. More than 15 terabytes of electronically stored information had been produced, the equivalent of 912 million pages of information. On the basis of this production, the litigation can be described as the largest ever in which the United States has been involved.”

The record shows Judge Duval has been sensitive to the size of the case.  His Order summarizes that effort to accommodate:

On March 31, 2009, this Court held a pretrial conference at which time it made certain accommodations to the parties by virtue of the voluminous nature of the exhibits, depositions and witnesses involved in the prosecution of this case extending the period of time for filing certain materials and meeting deadlines.

To begin, this Court has always required all objections to exhibits to be contained in the pretrial order or such objections are considered waived. As the parties had not finished even identifying documents for the trial, the Court slid the deadline for such objections to April 8,2009, with responses to be filed on April 13, 2009. In addition, the Court gave the parties to April 8, 2009 for the production of the exhibits.

There was also confusion as to which witnesses would be required to testify live and which would be by deposition. The Court allowed the parties to deliver to the Court the requisite deposition cuts for the relevant testimony to begin on April 13, 2009. These filings were to include a 2-page executive summary as well.

What happened, then, on April 8 and thereafter that resulted in the Order Judge Duval issued yesterday?pages-from-usa-exhibit-list-with-plaintiffs-objections-marked

The Plaintiffs filed a brief and enclosed  their Objections to Defendant’s Exhibits in a 315-page chart.  Judge Duval’s Order noted:

There is no explanation or any argument contained in this document. The number of documents to which there are objections appears to be in the neighborhood of 800.

While the Plaintiffs’ response was non-traditional, shall we say, the USA went beyond non-tradition and filed the legal equivalent of the-dog-ate-my-homework – a document asking that it be allowed to reserve its right to object to any of the Plaintiffs’ exhibits upon grounds of relevance.  Judge Duval granted the request and noted in his Order:

Having assured the Court that the United States did not anticipate making many objections to plaintiffs’ exhibits as the vast majority, if not all, of the exhibits are Government generated, the Court granted this request. This accommodation is the first time in the Court’s 14 plus years on the bench that it has ever allowed such a practice.

Then, on the 13th, Defendant USA filed an objection to the Plaintiffs” objections! Judge Duval had something to say about that, too:

On April 13, 2009, the United States responded to Plaintiffs’ filing with another blanket response to the end that it could not respond because the plaintiffs had failed to articulate the reasoning for making their objections, and that the Court should overrule the Plaintiffs objections in toto or, to defer its rulings on those objection until the Untied States introduces its exhibits at trial.

The Court will not do so. While it still is not in possession of the defendants’ exhibits, which were due nearly a week ago on April 8, 2009, the Court intends to rule on Plaintiffs’ objections to these exhibits as soon as it receives copies of the documents.

How many copy machines was the USA running last night?  A lot, wouldn’t you think?

However, exhibits were only one problem addressed in Judge Duval’s order. The two parties have also had difficulty reaching an agreement about who on the Plaintiffs’ witness list and who on the list of Defendant’s witnesses will testify.

Earlier in the month Judge Duval issued an amended scheduling order to give the parties more time.  Clearly time has run out.

As to the deposition cuts, the Court received the first wave of these at approximately 11:30 a.m. today, April 14, 2009. It is imperative that the Court receive the rest of these designations as soon as possible as it intends to review all of this testimony prior to trial commencing on April 20, 2009.

I wouldn’t recomment waiting until the 19th!

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