Free Objections - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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Filed 01/22/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso"), by counsel, respectfully submits these Objections to Plaintiffs' Deposition and Trial Transcripts pursuant to the October 17, 2006 Trial Procedures Order and states as follows: I. Introduction The October 17, 2006 Trial Procedures Order requires the parties to designate by page and line any deposition testimony they intend to offer at trial by December 12, 2006, and provide the Court with objections to designated testimony on a copy of the transcript by January 22, 2007. On December 12, 2006, Plaintiffs' counsel sent an electronic mail message to El Paso's counsel stating that Plaintiffs intend to offer the August 12, 2002 deposition of Kenneth Klco taken in this case, the February 15, 2006 trial testimony of Scott Lewis taken in Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civil Action No. 01-cv-02325-MSK-MEH ("the CC&V case"), the February 17, 2006 trial testimony of Jeff Pontius taken in the CC&V case, and

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the December 16, 2004 deposition of Scott Lewis taken in the CC&V case.1 Exhibit 1. Rather than designating specific line and page numbers, Plaintiffs' counsel indicated that Plaintiffs may offer "all pages and lines" of the transcripts. Id. By designating the transcripts in their entirety, Plaintiffs violated the Court's Order and prevented El Paso from providing meaningful objections to specific sections of the transcripts as ordered by the Court. El Paso raises general objections to the admissibility of the testimony as stated below. II. El Paso's Objections to Mr. Klco's Deposition Testimony El Paso objects to Mr. Klco's deposition on the grounds that it is not admissible under FED. R. CIV. P. 32. Plaintiffs have the burden of proving that Mr. Klco's deposition testimony is admissible under Rule 32. Angelo v. Armstrong World Indust., Inc., 11 F.3d 957, 962-63 (10th Cir. 1993). Deposition testimony is normally considered hearsay, but Rule 32 provides certain exceptions to the hearsay rule. Id. at 963. A deposition can only be introduced at trial if it is admissible under the rules of evidence and is used against a party who was present or represented at the deposition. FED. R. CIV. P. 32(a). A party may only introduce a deposition under the following circumstances: to impeach the testimony of a deponent as a witness; where the deponent is an officer, director, or managing agent authorized to testify on behalf of a corporation, partnership or association that is a party; or where the deposition witness is not available to testify at trial. Id. The limitations on the use of deposition testimony imposed by

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Plaintiffs included Mr. Lewis's deposition transcript as part of Exhibit 71.

EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH
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Rule 32 indicate preference for live testimony over deposition testimony. Planned Parenthood v. American Coalition of Life Activists, 209 F.3d 1058, 1118 (9th Cir. 2002). Under Rule 32, a party is not required to designate testimony it intends to use solely for impeachment. FED. R. CIV. P. 26(a)(1)(b). El Paso does not object to the use of Mr. Klco's deposition for impeachment purposes. Mr. Klco is not an officer, director, or managing agent, of any party to this case. Plaintiffs have endorsed Mr. Klco as a witness for trial indicating that he will be available to testify. Plaintiffs' Witness List attached to the Final Pretrial Order. Thus, the exceptions provided by Rule 32 do not apply to Mr. Klco's deposition. If Plaintiffs offer Mr. Klco's deposition for the truth of the matters asserted therein, El Paso objects on the grounds that the deposition contains statements that are hearsay under FED. R. EVID. ART. VIII. FED. R. EVID. 804 provides that hearsay contained in deposition testimony is only admissible if the declarant is unavailable as a witness. Since Mr. Klco is available to testify, this exception does not apply. Under FED. R. EVID. 801(d)(1), the prior statement of a witness is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is inconsistent with the declarant's testimony and was given under oath at a trial, hearing or deposition. Rule 801 also allows the introduction of a statement in a deposition if it is consistent with the declarant's testimony at trial and is introduced to rebut an express or implied charge against the declarant of recent fabrication, improper influence or motive. Id. To the extent that Rule 801's exceptions apply to statements in Mr. Klco's deposition, El Paso does not object to their admissibility.
EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

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If Plaintiffs intend to rely on statements in Mr. Klco's deposition for the purpose of providing scientific, technical or specialized knowledge that will help the Court understand the evidence or determine a fact at issue, El Paso objects on the grounds of lack of foundation for expert testimony. FED. R. EVID. 702 & 703. El Paso objects to the use of Mr. Klco's deposition for the purpose of presenting expert opinions on the grounds that Plaintiffs did not designate Mr. Klco as an expert as required by FED R. CIV. P. 26(a)(2). Finally, if Plaintiffs intend to rely on statements in Mr. Klco's deposition for the truth of the matters asserted therein, El Paso objects on the grounds of lack of personal knowledge for lay witness testimony. FED. R. EVID. 602 & 701. This Court should refuse to admit Mr. Klco's deposition testimony except for impeachment purposes. III. El Paso's Objections to the Testimony of Mr. Lewis and Mr. Pontius El Paso objects to the transcripts of the trial testimony of Scott Lewis and Jeff Pontius in the CC&V case, and the transcript of Mr. Lewis's deposition in that case, on the following grounds. The transcripts contain testimony of agents of the Cripple Creek & Victor Gold Mining Company. Plaintiffs' claim herein is identical with one of Plaintiffs' claims in the CC&V case. El Paso moved the Court to consolidate this case with the CC&V case on December 17, 2001. [Doc. # 4]. The Defendants in the CC&V case consented to consolidation [Doc. # 12 & 13], but Plaintiffs opposed consolidation. [Doc. # 10]. The Court initially denied El Paso's motion on January 16, 2002 [Doc # 14] and denied El Paso's amended motion to consolidate [Doc # 35] on July 10, 2002 [Doc # 70] and September 13, 2002 [Doc # 78]. The District Court denied El
EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

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Paso's motion to consolidate in the CC&V case on March 26, 2002. Consequently, El Paso was not a party to the CC&V case and did not have notice of the deposition or trial testimony or an opportunity to cross-examine or conduct discovery with respect to either Mr. Lewis or Mr. Pontius. Since El Paso was not present at depositions or trial, Plaintiffs should not be able to rely on testimony from the CC&V case. If Plaintiffs offer Mr. Lewis's deposition or the CC&V case trial transcripts for the truth of the matters asserted therein, El Paso objects on the grounds that they contain statements that are hearsay under FED. R. EVID. ART. VIII. Plaintiffs have endorsed Mr. Lewis and Mr. Pontius as witnesses in this case and cannot claim that the hearsay exception provided by Rule 804 applies to these witnesses. Plaintiffs' Witness List attached to the Final Pretrial Order. To the extent that Rule 801's exceptions apply to statements in the transcripts, El Paso does not object to their admissibility. El Paso also objects to Mr. Lewis's deposition on the grounds that it is not admissible under FED. R. CIV. P. 32. Rule 32(a) only allows a deposition to be used against a party that "was present or represented at the taking of the deposition or who had reasonable notice thereof." Since El Paso was not present or represented at the trial and did not have reasonable notice of the deposition, Plaintiffs are prohibited from using the deposition at trial. If the Plaintiffs intend to rely on statements in the transcripts for the purpose of providing scientific, technical or specialized knowledge that will help the Court understand the evidence or determine a fact at issue, El Paso objects to the testimony on the grounds of lack of foundation
EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

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for expert testimony. FED. R. EVID. 702 & 703. El Paso also objects to the use of the transcripts for the purpose of presenting expert opinions on the grounds that Plaintiffs did not designate Mr. Lewis or Mr. Pontius as experts as required by FED R. CIV. P. 26(a)(2). Further, if Plaintiffs intend to rely on statements in the transcripts for the truth of the matters asserted therein, El Paso objects on the grounds of lack of personal knowledge for lay witness testimony. FED. R. EVID. 602 & 701. Finally, El Paso objects to the CC&V trial transcripts and Mr. Lewis's deposition transcript on the grounds that they were not disclosed by Plaintiffs as required by FED. R. CIV. P. 26. Rule 26(a)(1)(B) requires a party to provide "a copy of . . . all documents that are in the possession custody, or control of the party and that the disclosing party may use to support its claims or defenses." Rule 26(e) requires a party to supplement its disclosures under Rule 26(a) to include information acquired after the initial disclosures. FED. R. CIV. P. 37 (c)(1) states that "[a] party that without substantial justification fails to disclose information by Rule 26(a) is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed." Plaintiffs did not provide El Paso with a copy of Mr. Lewis and Mr. Pontius's trial testimony transcripts or Mr. Lewis's deposition transcript or inform El Paso of their intent to use the transcripts until December 2006, two years after Mr. Lewis's deposition and ten months after the CC&V trial. Since Plaintiffs did not provide the transcripts until this late date, they are prohibited by Rule 37(c)(1) from using them at trial.

EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

Sierra Club, et al. v. El Paso Properties, Inc. 01-cv-2163-BNB-MEH
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WHEREFORE, El Paso respectfully requests that the Court exclude the testimony designated by Plaintiffs except for the limited purposes authorized by FED. R. CIV. P. 32 and the Federal Rules of Evidence.

Respectfully submitted this 22nd day of January, 2007.

_s/ Stephen D. Harris________ James L. Merrill, No. 9466 Stephen D. Harris, No. 24178 Michael J. Gustafson, No. 37364 MERRILL, ANDERSON & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) Counsel for El Paso Properties, Inc.

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS TESTIMONY was sent electronically via ECF this 22nd day of January, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302

EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

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__s/ Sarah D. White__ Sarah D. White, Staff Assistant

EL PASO'S OBJECTIONS TO PLAINTIFFS' DEPOSITION AND TRIAL TRANSCRIPTS

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