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admissible. Rule 401 of the Federal Rules of Evidence14 provides
that evidence is relevant if it has “any tendency” to make “any
fact” of consequence more likely or less likely than it would be
without the evidence.
In determining whether respondent’s position is
substantially justified, we come to a conclusion as to whether
petitioner provided materials to respondent before November 20,
2003, the date respondent’s answer was filed. The accuracy of
respondent’s records could affect our conclusion as to the
existence of the fact of such providing, especially in light of
petitioner’s declaration on this point, discussed infra (C.
Substantially Justified, 3. What Respondent Knew). This is
clearly a “fact that is of consequence to the determination of
the action”, within the meaning of rule 401 of the Federal Rules
of Evidence. Under these circumstances (although we disagree
with many of petitioner’s characterizations of what the Report
shows), we conclude that the Report is relevant.
We overrule respondent’s relevance objection and receive
Exhibit 22-P into evidence.
14 Fed. R. Evid. 401. Definition of “Relevant Evidence”:
“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
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