Letter to Smiley from Neyhart RE: Changes in Designations

    EVERETT & EVERETT 
ATTORNEYS AND COUNSELORS AT LAW 

SUITE 300 
R.O. EVERETT (1878-1971) 301 W. MAIN STREET 
KATHRINE R. EVERETT (1893-1992) P.O. BOX 586 

ROBINSON O. EVERETT 
DAWN T. BATTISTE DurHaMm, NORTH CAROLINA 27702 TEL: (919) 682-5691 
SANDRA G. HERRING FAX: (919) 682-5469 

OF COUNSEL 
ROBERT D. HOLLEMAN 

OF COUNSEL 
CRAIG M. KABATCHNICK 
(ADMITTED NC, D.C.) 

July 28, 2000 

VIA FAX AND U.S. MAIL 

Ms. Tiare B. Smiley 

Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Re: Changes in Designations 

Dear Tiare: 

We were surprised to see the massive additions to your trial testimony and deposition 
designations that appeared for the first time in this process in Ms. Carraway’s letter to us 
yesterday. We do not see how a number of these additions are in any way responsive to specific 
material we have previously designated. 

Although we are still scrambling to assess this new material, we have completed our 
review of your additions to the trial transcript. In response to these additions, we now have three 
cross designations to add for context. For the testimony of R. O. Everett, we designate an 
additional line at the end of your first entry, to include 91:09. At the end of your designation 
from the testimony of Dan Frey we designate from 141:24 through 142:10. In your designations 
from Dr. Weber's testimony, we add line 300:23 through 301:6. Finally, we note that in your last 
designation of Senator Cooper, you have a typo of some sort, as you have designated 435:11 
through 435:2. If this designation as corrected is confined in some way to page 435, we do not 
have any cross designations to make in response to it. 

On a more serious matter, we have also noticed that you have designated deposition 
material that we do not believe has ever been before the district court either through a pleading, 
designation in the Pre-Trial Order, or by proffer of the entire deposition during the trial. We 
object to the inclusion of any material in the Joint Appendix that has not been admitted into 
evidence and was never before the court in a pleading. If we are in error, please let us know 
where the specific designations listed in the following paragraph were admitted into evidence or 
before the Court as a pleading.  



  

Ms. Tiare Smiley 

January 28, 2000 
Page 2 

Specifically, we note that the following designations are, to the best of our knowledge, 
not in the record: 

WEBER DEPOSITION 

135:8-20 (Only lines 21 through 24 had been designated) 
192:1-15 

35:7-36:7 (Only lines 34:16 through 35:6 had been designated) 
119:4-122:4 

138:19-139:16 

141:21-142:7 

144:21-145:14 

156:14-157:1 

167:1-167:11 

247:24-250:1 

250:22-251:13 

FROELICH DEPOSITION 

52:5-55:20 

76:21-25 

78:9-80:8 (Only selected portions of this section were designated) 

COOPER DEPOSITION 

80:24-82:8 

COHEN SHAW TRIAL 
341:17-342:17 (Only 342:18 to 344:16) 
420:22-421:15 (Only selected portions of this section were designated) 

With regards to the Cohen Shaw trial, our understanding is that all of Cohen’s depositions 

were admitted by the Court Wednesday morning, Dec. 1, 1999. But we do not understand the 

Shaw trial testimony to have been admitted at that time. However, we would accept an 

interpretation of that ruling which would include the Cohen Shaw trial testimony with his other 
depositions if that is your understanding of it. 

Sincerely, 

SA AX . 

Seth A. Neyhart 

CC; Adam Stein 

sce” Todd Cox