Sixty-Three Strategic Investment Funds et al v. United States of America

Filing 20

ORDER DENYING AS PREMATURE RESPONDENT'S MOTION TO EXCLUDE TESTIMONY OF STUART A. SMITH re 14 MOTION in Limine to Exclude Expert Report and Testimony of Stuart Smith filed by United States of America. Signed by Chief Judge James Ware on August 7, 2012. (wsn, COURT STAFF) (Filed on 8/7/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 SAN FRANCISCO DIVISION 4 Shasta Strategic Inv. Fund, et al., 5 NO. C 04-04264 JW NO. C 05-01123 JW NO. C 05-01996 JW NO. C 05-02835 JW NO. C 05-03887 JW NO. C 04-04398 JW NO. C 04-04309 JW NO. C 04-04964 JW Petitioners, v. 6 United States of America, 7 Respondent. 8 9 / ORDER DENYING AS PREMATURE RESPONDENT’S MOTION TO EXCLUDE TESTIMONY OF STUART A. SMITH Sixty-Three Strategic Inv. Funds, et al., 10 Petitioners, 11 United States of America, For the Northern District of California United States District Court v. 12 Respondent. 13 14 / Sixty-Three Strategic Inv. Funds, et al., 15 Petitioners, v. 16 United States of America, 17 Respondent. 18 19 / Twenty-Two Strategic Inv. Funds, et al., 20 Petitioners, v. 21 United States of America, 22 Respondent. / 23 24 Twenty-Two Strategic Inv. Funds, et al., Petitioners, 25 v. 26 United States of America, 27 Respondent. 28 / 1 Sanford Strategic Inv. Fund, et al., 2 Petitioners, 3 4 v. United States of America, Respondent. 5 / 6 Belford Strategic Inv. Fund, et al., 7 Petitioners, 8 9 v. United States of America, 10 Respondent. Sill Strategic Inv. Fund, et al., For the Northern District of California United States District Court / 11 12 Petitioners, 13 14 v. United States of America, 15 Respondent. / 16 17 Presently before the Court is Respondent’s Motion to Exclude the Testimony of Stuart 18 Smith.1 The government moves to exclude Mr. Smith’s testimony on the grounds that (1) his 19 opinions relate only to partner level defenses, which are outside of the Court’s jurisdiction; and (2) 20 his testimony consists of legal analysis and legal conclusions regarding the reasonableness of 21 Petitioners’ actions, and thus impermissibly invade the province of the Court. (Motion at 2.) 22 Petitioner responds that Mr. Smith’s opinions regarding the quality of the tax-opinion letters 23 24 25 1 26 27 28 (United States’ Motion Under Federal Rules of Evidence 401 and 702 to Exclude the Expert Report and Testimony of Stuart Smith, hereafter, “Motion,” Docket Item No. 136 in C 044264; Docket Item No. 37 in C 05-2835; Docket Item No. 80 in C 05-1123; Docket Item No. 23 in C 05-3877; Docket Item No. 14 in C 05-1996; Docket Item No. 36 in C 04-4398; Docket Item No. 46 in C 04-04309; Docket Item No. 37 in C 04-4964.) 2 1 received by Petitioners will assist the jury in determining whether Petitioners acted reasonably in 2 entering the tax transactions at issue.2 3 Upon review, because Respondent’s Motion is directed to the relevance, and not the 4 reliability of Mr. Smith’s testimony under Daubert, the Court finds that Respondent’s Motion would 5 be more properly heard as a motion in limine by the trial judge. Accordingly, in light of the Court’s 6 pending retirement,3 the Court DENIES as premature Respondent’s Motion to Exclude. Respondent 7 may re-notice its Motion upon reassignment to a new judge at the appropriate time. 8 9 Dated: August 7, 2012 JAMES WARE United States District Chief Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 (Petitioners’ Opposition to Respondent’s Motion to Exclude the Expert Report and Testimony of Stuart A. Smith, Docket Item No. 41.) 3 27 28 On April 28, 2012, Chief Judge Ware announced that he plans to “retire in August 2012 as the terms of his current law clerks come to an end.” See Chief Judge Ware Announces Transition, available at http://www.cand.uscourts.gov/news/82. 3 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 3 4 5 Adair Ford Boroughs adair.f.boroughs@usdoj.gov David A. York david.york@lw.com Margaret Tough margaret.tough@lw.com Steven Mark Bauer steve.bauer@lw.com Stuart David Gibson Stuart.D.Gibson@usdoj.gov Thomas Moore tom.moore@usdoj.gov 6 7 8 Dated: August 7, 2012 Richard W. Wieking, Clerk 9 11 By: For the Northern District of California United States District Court 10 /s/ JW Chambers 12 William Noble 13 Courtroom Deputy 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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