IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF WYOMING

Marilyn Patriot,		)
Plaintiff,			) 	Civil No. 2:08-CV-156-XXX
				)
v.				)
				)	MOTION IN LIMINE
UNITED STATES OF AMERICA,	)
Defendant.			)							

MOTION IN LIMINE TO PRECLUDE THE DECLARATION OF TERESA BUSTOS 
AND THE DECLARATION OF SHANE ODD

Now comes the Plaintiff, Marilyn Patriot, by and through her attorneys, and requests that this Court preclude testimony from Teresa Bustos and Shane Odd – submitted on January 29, 2009 – because they were identified after the discovery deadline.

1. Plaintiff's first set of interrogatories asked Defendant: “Identify all persons, parties, witnesses and potential witnesses, involved [in] any way in this case.” On August 25, 2008, Defendant responded: “The United States objects to this interrogatory for the identity of ‘all persons, parties, witnesses and potential witness, involved in any way in this case’ as overly broad, vague and ambiguous. The United States further objects o this request to the extent it seeks confidential attorney work product. Notwithstanding these objections, and without waiving same, the United States responds as follows:
   Marilyn Wallace . . .
   Thomas Bentley
   Internal Revenue Service Appeals Officer (retired) . . .
   Michigan Public School Employees Retirement System . . .”
   
2. Defendant also provided a brief description for each of the names mentioned above. There was no mention of Teresa Bustos or Shane Odd in Defendant’s response.
3. Plaintiff would not have filed this motion if Defendant had complied with the discovery cut-off date of November 21, 2008 and the Court’s “Order on Initial Pretrial Conference” which specifically stated that “The defendant SHALL provide the plaintiff with the names of individuals likely to have discoverable information . . . on or before August 1, 2008” and submitted the names of affiants as witnesses so that Plaintiff could cross-examine them.
4. Defendant submitted the two declarations on January 29, 2009 – months after the deadline – and is providing Plaintiff with no opportunity to cross-examine the affiants in Court and challenge their testimony. Plaintiff cannot cross-examine a declaration.
5. Plaintiff requests that this Court excludes these declarations since they are hearsay, unless the affiants would have to testify in Court and be subject to cross-examination.
6. Both Teresa Bustos and Shane Odd stated that they have “personal knowledge of the manner in which IRS records, administrative files, and computerized information are created and maintained.” None of them stated that they have personal knowledge of Plaintiff’s case or that they have previously dealt with her file prior to January 2009.
7. Bustos’ declaration is hearsay within hearsay, attesting to the Form 4340 transcripts as being “true and correct” -- similar to what Defendant’s attorney had done in a previous filing. Their “personal knowledge” does not extend to documents prepared by someone else, such as Linda L. Drake in this case.
8. Similarly, Odd’s declaration is also hearsay within hearsay since it presents information conveyed by someone else and not based on a “personal knowledge.” For example, the declarant did not even identify the name of the IRS officer who concluded that Plaintiff’s files were “DESTROYED.”
9. These declarations should be excluded because the signers were not identified as witnesses, their testimony is hearsay without any opportunity to cross-examine them in Court, and there is no evidence to them having first hand personal knowledge of Plaintiff’s case prior to January 2009. IRS officers are not interchangeable. They are separate witnesses. Accordingly, Plaintiff requests that this Court strike the declarations of Teresa Bustos and Shane Odd.

Respectfully submitted,

____________________
Lawyer Patriot