           In the United States Court of Federal Claims
                                           No. 10-851T
                                     (Filed: January 8, 2015)

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CHARLES P. ADKINS and JANE E.       *
ADKINS,                             *
                                    *
                  Plaintiffs,       *
                                    *
 v.                                 *
                                    *
THE UNITED STATES,                  *
                                    *
                  Defendant.        *
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           RULING ON PLAINTIFFS’ MOTION TO REOPEN THE RECORD

         The court conducted a trial in the above-captioned case in November 2014. During that
trial, the court admitted, over plaintiffs’ objection, defendant’s rebuttal exhibit 38–a three-page
record of an interview that FBI Special Agent Kurt F. Dengler conducted with Charles P. Adkins.
Plaintiffs’ objection to the admission of this document into evidence was based on the fact that
defendant did not produce the document during discovery even though it was, plaintiffs believed,
responsive to their discovery requests. Defendant countered that during discovery, it had
disclosed the existence of the document to plaintiffs and advised plaintiffs that the FBI would
produce the document to plaintiffs if they signed a “Privacy Act Waiver and Certification of
Identity” form (which defendant provided plaintiff). Plaintiffs did not return a signed waiver to
defendant.

         The court concluded that plaintiffs’ failure to execute the necessary waiver precluded
their objection that the document had not been provided to them during discovery and that the
document was admissible as a business record. Accordingly, the court admitted the document
into evidence. Upon doing so, however, the court advised plaintiffs that it would revisit its ruling
if plaintiffs produced a signed waiver that had been provided to defendant or that defendant later
advised them that a signed waiver was not needed for the document’s production.
Approximately two weeks later, on December 1, 2014, plaintiffs filed a motion to reopen the
record. Despite the court’s instructions during trial, nowhere in plaintiffs’ motion do they
indicate that they returned a signed waiver to defendant or that defendant later advised them that
a signed waiver was unnecessary. Rather, plaintiffs seek to introduce into the record additional
arguments, and a previously undisclosed supporting exhibit, against the admissibility of the
document.
         In brief, plaintiffs contend that when they received defendant’s offer to produce the
document upon receipt of a signed waiver, they believed that defendant was attempting to settle
all of the parties’ outstanding discovery disputes. Thus, rather than return the signed waiver, they
filed a motion to compel answers to interrogatories and the production of documents. In a June
12, 2012 order, the court denied plaintiffs’ motion, explaining that the parties had “agreed that a
properly worded stipulation would obviate the need for the discovery sought by plaintiffs.”
Plaintiffs represent that they believed that the denial of their motion to compel trumped their
right to obtain any documents from the FBI.

       In its response to plaintiffs’ motion to reopen the record, filed on December 18, 2014,1
defendant characterizes plaintiffs’ explanation for their failure to return a signed waiver as
“nonsensical.” It further emphasizes that during the status conference convened by the court to
discuss plaintiffs’ motion to compel, plaintiffs suggested that they were most concerned with
obtaining discovery regarding the actions of the criminal defendants, and not discovery
concerning what they told the FBI (since they had personal knowledge regarding their
discussions with the FBI).

         The court clearly stated during trial that the document was admissible and that it would
revisit that ruling only if plaintiffs could establish surprise, that is, that they submitted a signed
waiver to defendant or that they were later advised that a signed waiver was unnecessary and
defendant failed to produce the document. Having failed to allege, much less establish, that
either of these two circumstances existed, plaintiffs’ motion to reopen the record must be denied.
Moreover, plaintiffs assert in their motion that the information contained in the document at issue
is “merely cumulative.” Therefore, as plaintiffs recognize, they suffer no prejudice by the
admission of the document into the trial record.

       For the reasons stated, the court DENIES plaintiffs’ motion to reopen the record.

       IT IS SO ORDERED.

                                                       s/ Margaret M. Sweeney
                                                       MARGARET M. SWEENEY
                                                       Judge




       1
           The deadline for plaintiffs’ reply was January 5, 2015; no reply has been filed.

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