# In th e United States Court of Federal Cl aims

No. 10-851T (F iled: J anuary

8, 2015)

************************************* CHARL ES P. ADKI

NS and J A

NE E. * ADKI NS, *
* Plaintiffs, *

*
v. *
* THE UNI TED STATES, *
* Defendant. *
*************************************

RULINGON P LAINTIF F S’ MOTION TO REOP EN 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 ex hibit 38–a three-pag e record of an interview that F B I Special Ag ent Kurt F . Deng ler 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 thoug h it was, plaintiffs believed, responsive to their discovery requests. Defendant countered that during discovery , it had disclosed the ex istence of the document to plaintiffs and advised plaintiffs that the F B I would produce the document to plaintiffs if they sig ned a “Privacy

Act W aiver and Certification of I dentity ” form (which defendant provided plaintiff). Plaintiffs did not return a sig ned waiver to defendant. The court concluded that plaintiffs’ failure to ex ecute 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 sign ed waiver that had been provided to defendant or that defendant later advised them that a sig n ed waiver was not needed for the document’s production. Approx imately 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 sig n ed waiver to defendant or that defendant later advised them that a sig ned waiver was unnecessary . Rather, plaintiffs seek to introduce into the record additional arg uments, and a previously undisclosed supporting ex h ibit, ag a inst the admissibility of the document.I n brief, plaintiffs contend that when they received defendant’s offer to produce the

document upon receipt of a sig ned waiver, they

believed that defendant was attempting to settle all of the parties’ outstanding discovery disputes. Thus, rather than return the sig ned waiver, they filed a motion to compel answers to interrog atories and the production of documents. I n a J une 12, 2012 order, the court denied plaintiffs’ motion, ex plaining that the parties had “ag reed that a properly worded stipulation would obviate the need for the discovery soug ht by

plaintiffs.” Plaintiffs represent that they believed that the denial of their motion to compel trumped their rig ht to obtain any documents from the F B I

.
I n its response to plaintiffs’ motion to reopen the record, filed on December 18, 2014, 1 defendant characteriz es plaintiffs’ ex planation for their failure to return a sig ned waiver as “nonsensical.” I

t further emphasiz es that during the status conference convened by the court to discuss plaintiffs’ motion to compel, plaintiffs sug g ested that they were most concerned with obtaining discovery

reg arding the actions of the criminal defendants, and not discovery concerning

what they

told the F B I (since they

had personal knowledg e reg arding their discussions with the F B I )

. 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 sig ned waiver to defendant or that they were later advised that a sig ned waiver was unnecessary and defendant failed to produce the document. Having failed to alleg e, much less establish, that either of these two circumstances ex isted, 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 recog niz e, they suffer no prejudice by

the admission of the document into the trial record.

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

IT IS SO ORDERED. s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

1 The deadline for plaintiffs’ reply was J anuary

5, 2015; no reply has been filed.

-2-