Free Objections - District Court of Colorado - Colorado

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

Document 224

Filed 12/22/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' OBJECTIONS TO DEFENDANT'S TRIAL EXHIBITS ______________________________________________________________________________

Pursuant to Federal Rule of Civil Procedure 26(a)(3) and Final Pretrial Order ¶ 7 (c) [#219]. Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby object to certain trial exhibits listed by Defendant on the Final Pretrial Order as follows: DEFENDANT'S EXHIBITS General Objections Plaintiffs object under Fed.R.Civ.P. 26 to the following exhibits because they were not disclosed or provided to Plaintiffs during discovery: Exhibits V & W. As per Federal Rule of Civil Procedure 26(a)(3), Plaintiffs reserve for trial all objections under Federal Rules of Evidence 402 and 403. Specific Objections

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

Document 224

Filed 12/22/2006

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Pursuant to Federal Rules of Evidence ("FRE") 102 (Purpose and Construction), 106 (Rule of Completeness), 602 (Foundation), 802 (Hearsay Rule), 803(18)(Learned Treatise), 901 (Authentication), 902 (Self-authentication), 1002 (Requirement of Original), and Federal Rules of Civil Procedure 26 (disclosure) and 32 (use of transcripts) Plaintiffs have the following specific objections to Defendant's trial exhibits: Exhibit A: FRE 106 (completeness as to some attachments and information), 602 (foundation as to some attachments and information), 802 (hearsay), 901 (authenticity of certain attachments and information). Exhibit B: FRE 602 (foundation as to some attachments and information), 802 (hearsay), 901 (authenticity of certain attachments and information). Exhibit C: The page between pages 10 and 11 is blank and is not believed to be part of the original exhibit. FRE 106 (completeness), 802 (hearsay). Exhibit D: This exhibit is the same as Plaintiffs' trial exhibit 70. Plaintiffs seek to admit this entire exhibit under Federal Rule of Civil Procedure 32 (a)(3). FRE 106 (exhibits to deposition transcript are not included with Exhibit D). Exhibit E: FRE 802 (hearsay). Dr. Maest will be testifying at trial. Admissible only to the extent allowed by Fed.R.Civ.P. 32. FRE 106 (documents referred to in transcript are not included in exhibit). Exhibit F: FRE 802 (hearsay). Dr. Maest will be testifying at trial. Admissible only to the extent allowed by Fed.R.Civ.P. 32. FRE 106 (documents referred to in transcript are not included in exhibit). 2

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

Document 224

Filed 12/22/2006

Page 3 of 5

Exhibit G: FRE 802 (hearsay). Transcript was not taken in this case. Dr. Maest will be testifying at trial. Admissible only to the extent allowed by Fed.R.Civ.P. 32. FRE 106 (documents referred to in transcript are not included in exhibit). Exhibit H: FRE 106 (completeness), 802 (hearsay), 803(18)(learned treatise). Exhibit I: FRE 802 (hearsay), 803(18)(learned treatise). Exhibit J: FRE 802 (hearsay), 803(18)(learned treatise). Exhibit K: FRE 602 (foundation), 802 (hearsay), 803(18)(learned treatise). Exhibit L: FRE 602 (foundation), FRE 802 (hearsay), 803(18)(learned treatise). Exhibit M: FRE 802 (hearsay), 803(18)(learned treatise). Exhibit N: FRE 802 (hearsay), 106 (exhibit appears to be incomplete and may be missing at least pages 508 & 510), 803(18)(learned treatise). Exhibit O: This exhibit may be the same as Plaintiffs' trial exhibit 43. An actual copy of this DVD exhibit was not provided by Defendants to Plaintiffs at the time of exchange of trial exhibits. Thus, they are unable to determine its authenticity (FRE 901) or completeness. Exhibit P: This exhibit appears to include the same data Plaintiffs' trial exhibit 24. Exhibit Q: This exhibit appears to include the same data as Plaintiffs' trial exhibit 23. Exhibit R: An actual copy of this exhibit was not provided to Plaintiffs. Thus, they are unable to determine its authenticity (FRE 901), foundation (FRE 602), hearsay (FRE 802) or completeness.

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

Document 224

Filed 12/22/2006

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Exhibit S: Cumulative. This exhibit is contained in Defendant's trial exhibit A. FRE 106 (completeness), 602 (foundation), FRE 902 (authenticity), FRE 802 (hearsay). Incomplete disclosure of basis for exhibit under Fed.R.Civ.P. 26. Requires expert testimony by lay witness. Exhibit T: Cumulative. This exhibit is contained in Defendant's trial exhibit A. FRE 106 (completeness), 602 (foundation), FRE 902 (authenticity), FRE 802 (hearsay). Incomplete disclosure of basis for exhibit under Fed.R.Civ.P. 26. Requires expert testimony by lay witness. Exhibit U: Cumulative. This exhibit is contained in Defendant's trial exhibit A. FRE 106 (completeness), 602 (foundation), FRE 902 (authenticity), FRE 802 (hearsay). Exhibit V: This exhibit was not produced in discovery as required by Fed.R.Civ.P. 26. The information on this exhibit is incomplete and inaccurate. FRE 602 (foundation), FRE 902 (authenticity), FRE 802 (hearsay). Exhibit W: This exhibit was not produced in discovery as required by Fed.R.Civ.P. 26. The information on this exhibit is incomplete and inaccurate. FRE 602 (foundation), FRE 902 (authenticity), FRE 802 (hearsay). Exhibit X: This exhibit is included in Plaintiffs' trial exhibit 59. FRE 602 (foundation), FRE 802 (hearsay). Exhibit Y: Defendants did not provide an exhibit Y. Exhibit Z: Defendant did not provide an exhibit Z.

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

Document 224

Filed 12/22/2006

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Respectfully submitted by, December 22, 2006 s/ John Barth _________________________ John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE I do hereby certify that on this 22nd day of December, 2006 a true and accurate copy of PLAINTIFFS' OBJECTIONS TO DEFENDANT'S TRIAL EXHIBITS was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ John Barth __________________________ John Barth 5