          In the United States Court of Federal Claims
                                         No. 93-655C

                                    (E-Filed: July 24, 2018)

                                             )
 ANAHEIM GARDENS, et al.,                    )
                                             )
                      Plaintiffs,            )
                                                    Motion In Limine; Exclusion of
                                             )
                                                    Evidence that Allegedly Contradicts
 v.                                          )
                                                    Deposition Testimony of RCFC
                                             )
                                                    30(b)(6) Witness.
 THE UNITED STATES,                          )
                                             )
                      Defendant.             )
                                             )

Harry J. Kelly, Washington, DC, for plaintiffs.

Shari A. Rose, A. Bondurant Ely, Isaac B. Rosenberg, and Kara M. Westercamp, with
whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman,
Jr., Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, for defendant.

                                          OPINION

CAMPBELL-SMITH, Judge.

        On March 19, 2018, plaintiffs filed a motion in limine to preclude the government
from offering any evidence at trial contrary to the government’s testimony provided
pursuant to Rule 30(b)(6) of the Rules of the United States Court of Federal Claims
(RCFC). See ECF No. 427. Also before the court are defendant’s response brief, ECF
No. 445, and plaintiffs’ reply, ECF No. 458. Oral argument on the motion was neither
requested by the parties nor deemed necessary by the court. For the reasons stated below,
plaintiffs’ motion in limine regarding the upcoming trial of the claims of the first-wave
plaintiffs (FWPs) is DENIED.

        This is not the first time that the court has been obliged to resolve a dispute
regarding the RCFC 30(b)(6) deposition that underlies plaintiffs’ motion. Earlier in this
litigation the parties were not in agreement as to the scope of the deposition of the
representative for the United States Department of Housing and Urban Development
(HUD). In a detailed opinion, the court set the parameters for the RCFC 30(b)(6)
deposition of Mr. Maurice Barry. See Anaheim Gardens v. United States, 125 Fed. Cl.
88 (2016) (Anaheim); see also ECF No. 427 at 4 (identifying Mr. Barry as HUD’s RCFC
30(b)(6) witness who was deposed on May 11-12, 2016). Familiarity with the court’s
Anaheim opinion is presumed.

I.     Scope of Plaintiffs’ Motion

        Plaintiffs’ motion is somewhat ambiguous in scope. The motion could be
interpreted to focus only on Mr. Barry’s statements which, in a general fashion, allegedly
proclaimed that HUD “does not have any evidence” on certain topics. See ECF No. 427
at 4-11, ¶¶ 4(a)-(f), 4(i), 5(a)-(h), 6(c)-(h), 7(a)-(f), 8(a)-(d), 9(a)-(d) (all beginning with
the phrase “HUD does not have any evidence”). Plaintiffs assert that defendant must be
prevented from providing any supplemental trial evidence on any topic regarding which
HUD had no evidence, as affirmed by Mr. Barry’s deposition in May 2016. See id. at 12-
13 (asserting that “statements by the Government’s designee about lack of knowledge of
evidence about particular topics preclude[] the Government from offering evidence at
trial that would effectively change the Government’s position”) (citation omitted). In
order to prevent trial by ambush, plaintiffs request that defendant not be “permitted to
profess ignorance . . . in its RCFC 30(b)(6) deposition, only to then spring contradictory
facts on [the] FWPs for the first time at trial.” Id. at 14.

        In addition to the primary focus of plaintiffs’ motion in limine, there may also be a
secondary focus. Much less developed in plaintiffs’ motion is an assertion that Mr.
Barry’s deposition presented positive statements of fact or HUD’s position on certain
issues, which now preclude the government from presenting contrary statements of fact
or position at trial. See id. at 14 (“The purpose of RCFC 30(b)(6) would be undermined
if the Government were permitted to . . . express a particular position[] in its RCFC
30(b)(6) deposition, only to then spring contradictory facts on [the] FWPs for the first
time at trial.”). If, indeed, plaintiffs’ motion presents this second and distinct request, the
motion can logically be divided into two legal questions.1 First, what is the preclusive
effect of RCFC 30(b)(6) testimony that a government agency does not possess evidence
on a certain topic? Second, what is the preclusive effect of positive statements of fact or

1
        The government’s response brief does not address the secondary aspect of
plaintiffs’ motion. This is understandable, in the court’s view, given the lack of emphasis
in the motion given to Mr. Barry’s positive statements of fact or position, as opposed to
his statements allegedly addressing a “lack of any evidence” possessed by HUD as to
certain topics. The court notes, too, that plaintiffs’ reply brief again focuses primarily on
Mr. Barry’s statements which allegedly denied that HUD possessed evidence on certain
topics. See ECF No. 458 at 3 (“[A]ll of the cases cited by the Government are
distinguishable for another critical reason: they did not involve similar Rule 30(b)(6)
admissions about the lack of evidence about particular topics.”).


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position that are presented during a RCFC 30(b)(6) deposition? The court addresses each
of these questions in turn.

II.    Statements that an Agency Does Not Have Any Evidence

       According to plaintiffs, the government’s trial evidence cannot supplement the
alleged lack of evidence that was asserted by Mr. Barry during his deposition:

       Mr. Barry stated that he was prepared to testify about those topics. Yet, Mr.
       Barry repeatedly said that he was unaware of any evidence regarding many
       of those topics. [The] FWPs relied on that 30(b)(6) testimony when
       preparing for trial by identifying evidence and witnesses deemed necessary
       to prove facts that were contested by the Government. As a result, the
       Government should not be able to ambush [the] FWPs at trial with other
       evidence that Mr. Barry did not identify.

ECF No. 458 at 3 (citations omitted).

       The court does not find plaintiffs’ authority for this proposition to be persuasive.
Plaintiffs rely primarily on three cases, but none were decisions on motions in limine or
otherwise resolved disputes concerning trial evidence. ECF No. 427 at 12-13; ECF No.
458 at 3. The first case denied a motion seeking a protective order to prevent a Rule
30(b)(6) deposition. See Ierardi v. Lorillard, Inc., CIV. A. No. 90-7049, 1991 WL
158911 (E.D. Pa. Aug. 13, 1991). The second case was a summary judgment decision.
See Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., CIV. A. No. 06-4262, 2009
WL 2242380 (E.D. La. July 24, 2009). The third case was another summary judgment
decision. See Rainey v. Am. Forest & Paper Ass’n, Inc., 26 F. Supp. 2d 82 (D.D.C.
1998). None of these cases provide any insight into the preclusive effect, at trial, of Rule
30(b)(6) deposition testimony which is alleged to have asserted that a party did not
possess any evidence on a deposition topic.

        In contrast, defendant cites to persuasive authority that discusses the use of Rule
30(b)(6) deposition testimony at trial. ECF No. 445 at 3-4. In one case, Vehicle Market
Research, Inc. v. Mitchell International, Inc., 839 F.3d 1251 (10th Cir. 2016), the appeals
court noted that Rule 30(b)(6) deposition testimony does not have a “‘conclusive effect.’”
Id. at 1260 (quoting Templeton v. Catlin Specialty Ins. Co., 612 F. App’x 940, 959 n.19
(10th Cir. 2015)). In another case, the appeals court held that a party’s trial evidence may
contradict the party’s Rule 30(b)(6) testimony. See R & B Appliance Parts, Inc. v.
Amana Co., L.P., 258 F.3d 783, 786-87 (8th Cir. 2001) (noting that at trial a party was
free to argue that its Rule 30(b)(6) witness had erred). The court discerns in these cases a
general rule that the preclusive effect of RCFC 30(b)(6) testimony is not universal, and
that in many cases a party may supplement that testimony at trial, even on the same topic.
Based on these authorities, plaintiffs’ motion in limine, as regards Mr. Barry’s alleged
statements that HUD did not have any evidence on certain topics, is DENIED.


                                             3
III.   Statements Positively Asserting Facts or HUD’s Position

        In their reply brief, to which defendant has not had an opportunity to respond,
plaintiffs argue that factual admissions in a Rule 30(b)(6) deposition, as opposed to legal
conclusions, are binding on the party at trial. ECF No. 458 at 2-4. The court agrees with
plaintiffs that it would be an abuse of discovery to intentionally mislead plaintiffs, during
the RCFC 30(b)(6) deposition, with the factual admissions made by Mr. Barry.
Defendant appears to concede that any such conflicts between the evidence presented at
Mr. Barry’s RCFC 30(b)(6) deposition and at trial would need to be explained to the
court. ECF No. 445 at 4-5.

       At this time, however, the court considers plaintiffs’ contentions in this regard to
be hypothetical and not subject to resolution in the abstract. The general rule, that Rule
30(b)(6) deposition testimony does not have a conclusive effect, see supra, would appear
to permit adequately explained conflicts in trial evidence. Neither the conflicts, nor the
explanations, are presently before the court. Because plaintiffs’ motion, as to the factual
admissions of Mr. Barry, is premature, the court DENIES plaintiffs’ motion in limine.

IV.    Conclusion

       Accordingly, plaintiffs’ motion in limine to preclude the government from
offering any evidence at trial contrary to the government’s testimony pursuant to RCFC
30(b)(6), ECF No. 427, is DENIED.

       IT IS SO ORDERED.



                                                  s/Patricia Campbell-Smith
                                                  PATRICIA CAMPBELL-SMITH
                                                  Judge




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