discretion thereon, subject to the review by the Court on application by the dissatisfied party. RULE 38. CONSOLIDATION; SEPARATE TRIALS; (a) Consolidation: When actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. With consent of the parties and without order of the Court, the Commissioner may conduct a joint trial when two or more actions involve a common question of fact. (b) Separate Trials: The Court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, counterclaim, or of any separate issues or of any number of claims, counterclaims, or issues; and may enter appropriate orders or judgments with respect to any of such issues, claims, or counterclaims that are tried separately. (c) Preliminary Determination of Liability: Upon stipulation of the parties, subject to approval by the Commissioner, or upon order of the Court, trials in the first instance shall be limited (1) in patent cases to the issues of validity and infringement and (2) in other cases to the issues of law and fact relating to the right of plaintiff to recover. If, upon determination of such issues, the Court holds in favor of plaintiff, it shall enter its judgment in the form of an interlocutory order, reserving the determination of the amount of recovery and the amount of off-sets, if any, for further proceedings. RULE 39. COMMISSIONER MAY REQUEST INFORMATION A Commissioner may call upon the parties or the attorneys for the names and residences of witnesses they expect to examine and the desired place of examination, and may initiate and require any procedures similar in nature to those authorized in Rule 29 at any time after the trial has commenced. RULE 40. RECEPTION OF EVIDENCE (a) Time; Place; Notice: Whenever practicable, evidence shall be taken in one continuous session or a series of consecutive sessions, but the Commissioner may, in his discretion, hear portions of the evidence in a case at different times and in different places. The Commissioner shall give to the parties reasonable notice by mail of the time and place of trial or of each nonconsecutive session as he shall designate, and may direct therein that all or stated parts of evidence be produced. Such direction and the setting of the time when and place where the evidence is to be produced shall be as binding upon the parties as though fixed by the Court. (b) Delay by Parties: Whenever the Commissioner has reason to believe that the case is being unnecessarily delayed by the failure of either or both parties to produce evidence, the Commissioner may give notice to the parties fixing a reasonable time, not less than 30 days after the date of the notice, at which either or both parties must close the evidence. Upon failure of either party to comply, the Commissioner may, in his discretion, close the evidence and make and report to the Court his findings of fact upon the evidence produced, or may report to the Court for instructions, whereupon a rule shall issue to the defaulting party to show cause (1) why he has not complied with the notice of the Commissioner, (2) why the case should not be dismissed, or (3) why findings of fact should not be made on the evidence theretofore produced. RULE 41. EVIDENCE (a) Form and Admissibility: In all trials the testimony of witnesses shall be taken orally in open court. All evidence shall be admitted which is admissible under the statutes of the United States or under the rules of evidence applied in the courts of the United States in nonjury trials. In any case, the rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner. (b) Scope of Examination and Cross-Examination: A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party (which, in respect to a party plaintiff, shall include any present or former officer or employee of the United States or of any corporation wholly owned by the United States; and, in respect to defendant, shall include any present or former officer, director, managing agent, or employee of a public or private corporation or of a partnership or association which is an adverse party) and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. (c) Record of Excluded Evidence: If an objection to a question propounded to a witness is sustained by the Commissioner, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness or the Commissioner upon request or on his own motion may permit the evidence to be given and to be reported in full in lieu of a statement by the attorney upon offer of proof, unless it clearly appears that the witness is privileged or the evidence is not admissible on any ground. Where an objection to the introduction of documentary or physical evidence is sustained, the document or object shall be marked for identification and, upon the request of the party who offered the same, shall be filed by the reporter with the transcript of the evidence unless the Commissioner rules that such evidence is not admissible on any ground. (d) Record of the Testimony: The party whose evidence is to be taken shall furnish a competent and disinterested reporter to take down the evidence and transcribe the same. The reporter shall be sworn by the Commissioner to well and truly take down and transcribe the questions propounded to and the answers given by the witnesses, and to do all other things required of him by the Commissioner. The reporter shall be under the control and jurisdiction of the Commissioner. (e) Return of Transcript of Testimony: Unless otherwise ordered by the Commissioner, the reporter shall enclose the transcript of the testimony and the exhibits in a packet and transmit the same to the Clerk of the United States Court of Claims, Washington, D. C., within 30 days after the conclusion of the trial session at which such testimony was taken. In the event the transcript is not filed within 30 days, or within the time otherwise ordered by the Commissioner, a rule may be issued against the party whose evidence was taken to show cause (1) why the petition or counterclaim should not be dismissed; or (2) why proof should not be considered closed and findings of fact made on the evidence theretofore produced and filed with the Clerk. (f) Deferred Completion of Examinations; Death of Witness: When a time has been set for the production of all or a specified portion of the evidence and the examination or cross-examination of a witness is postponed at the request of a party, such party may be required, in the discretion of the Commissioner, to pay all fees and necessary travel and subsistence expenses which are incurred by witnesses as a result of such postponement. The Commissioner's conclusion in such matter shall be noted in the transcript of the evidence. Should a witness die or otherwise become incapacitated before completion of his testimony, the extent to which the testimony so far given by him shall be used and considered shall be determined by the Commissioner. (g) Exclusion of Proposed Witnesses: On his own motion or on the motion of either party, the Commissioner may exclude from the courtroom all persons other than parties, whom either expects or intends to call as witnesses in the case. Unless such motion is made at the beginning of the first trial session, the Commissioner may treat the delay in making such motion as grounds for denying the motion. If any witness remains within hearing of the proceedings after such exclusion has been ordered, that fact shall be noted of record in taking his testimony and he may be punished as for a contempt as provided in Rule 44 (f). This rule shall not apply to a person acting in an advisory capacity to counsel for either party. (h) Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. RULE 42. PROOF OF OFFICIAL RECORD (a) Authentication of Copy: An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed |