Free Motion to Clarify - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC. Plaintiff(s), v. LEAVELL-MCCOMBS JOINT VENTURE D/B/A THE VILLAGE AT WOLF CREEK Defendant(s). ______________________________________________________________________________ DEFENDANT'S COMBINED RESPONSE TO PLAINTIFF'S OBJECTIONS TO TRIAL EXHIBITS AND DESIGNATION OF DEPOSITION TESTIMONY ______________________________________________________________________________ Defendant, by and through its undersigned counsel, hereby submits this combined response to Plaintiff Wolf Creek Ski Corporation, Inc.'s Objections to Leavell-McCombs Joint Venture's Trial Exhibit List and Plaintiff Wolf Creek Ski Corporation, Inc.'s Objections to Leavell-McCombs Joint Venture's Designation of Deposition Testimony ("Combined Response") as follows: 1. Defendant believes that almost all the issues relating to exhibits and deposition

designations can be resolved through conferral with opposing counsel. While some conferral has been on-going over the telephone, face-to-face conferral is anticipated (and scheduled). Thus, Defendants hope and expect that there will be no need for judicial involvement as a result of currently pending objections.

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2.

Pursuant to Defendant's Motion/Request for Clarification of Minute Order Dated

March 17, 2008, it is Defendant's belief that this Combined Response is unnecessary. However, a literal reading of that Order indicates that this Combined Response is due on April 5, 20081 and that the due date for Plaintiff's response to Defendant's objections to trial exhibits and deposition designations was March 29 and has expired without any filing by Plaintiff or any request for extension. I. 3. RESPONSES TO PLAINTIFF'S TRIAL EXHIBIT OBJECTIONS On March 14, 2008, Plaintiff filed its Objections to Defendant Leavell-McCombs

Joint Venture's Trial Exhibit List. Therein, it listed a number of objections based on the fact that many of Defendant's trial exhibits are duplicative of Plaintiff's. (Although Plaintiff did not cite to any particular Federal Rule of Evidence ("F.R.E."), it is believed that F.R.E. 1002 is the applicable objection). Defendant's objections to Plaintiff's trial exhibits similarly listed

objections under F.R.E. 1002. (That objection was waived by letter dated April 4, 2008 agreeing to accept Plaintiff's preferred duplicate). 4. Plaintiff objects to many of Defendant's exhibits on the basis of F.R.E. 401,2 402

and 403. Pursuant to Fed. R. Civ. P. 26(a)(3)(B), objections on the basis of F.R.E.402 and 403 are not waived and therefore do not need to be asserted in an objection under Fed. R. Civ. P. 26(a)(3). In addition, until trial, it is difficult for a court to make relevance determinations because there is insufficient context. Accordingly, as to any objection to any of Defendant's trial

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A Saturday; hence filing is due on Monday, April 7, 2008. F.R.E. 401 sets forth the definition of "relevant evidence." Rule 402 provides that "[e]vidence that is not relevant is not admissible." Accordingly, Defendant assumes that wherever Plaintiff has objected on the basis of F.R.E. 401, the applicable rule is F.R.E. 402.

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exhibits that has been asserted on the basis of F.R.E. 402 or 403, Defendant's responses to those objections are reserved until trial. 5. By letter dated Friday, April 4, 2008, Defendant agreed to waive all objections to

Plaintiff's trial exhibits that were based on F.R.E. 106. To the extent Plaintiff has objected to any of Defendant's trial exhibits on the basis of F.R.E. 106, Defendant anticipates that any dispute regarding those objections will be resolved prior to the hearing on May 8, 2008. 6. Plaintiff objects to some exhibits on the basis of F.R.E. 701 (opinion testimony by

lay witness). See objections to Defendant's trial exhibits N(14) to P(14), Q(14), S(14), U(14), V(14), X(14), L(15), V(16) and W(16). Defendant is unable to determine which portions, if any, of these exhibits contains or purports to contain lay opinion and is therefore unable to formulate a response to Plaintiff's objections. Defendant reserves the right to respond once such portions, if any, are identified. 7. Plaintiff has objected to some of Defendant's trial exhibits on the basis of F.R.E.

801(d)(1). See objections to exhibits O(13), T(13), U(13), M(14), Z(14), S(15), T(15), K(16), L(16), M(16), N(16), and O(16). F.R.E. 801(d)(1) involves prior statements by a trial witness that are not hearsay. Defendant accepts Plaintiff's characterization of those exhibits as nonhearsay. 8. Plaintiff has objected to some of Defendant's trial exhibits on the basis of F.R.E.

803. See e.g. objection to exhibit B(10). F.R.E. 803 deals with hearsay exceptions. Defendant accepts Plaintiff's characterization of those exhibits as exceptions to the hearsay rule. 9. Plaintiff has objected to Defendant's exhibit P(13) (deposition transcripts of

Kingsbury Pitcher) on the basis of F.R.E. 804. This rule provides for hearsay exceptions where 3

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the declarant is unavailable. Kingsbury Pitcher is well into his 80's. During his two depositions, his health appeared to be very fragile. Accordingly, in the event Mr. Pitcher becomes unable to testify at trial, Defendant has designated portions of his deposition transcripts for trial. 10. Plaintiff has asserted F.R.E. 802 objections to Defendant's exhibits A, G, L, S, T,

U, YY, RRR, H(4), D(5), D(6), F(6), Y(6), I(7), J(7), K(7), L(8), R(8), S(8), U(8), Y(8), A(9), K(10), P(10), W(10), X(10), Z(10), F(11), J(11), K(11), O(11), S(11), W(11), Z(11), A(12), B(12), C(12), D(12), F(12), G(12), H(12), I(12), K(12), L(12), N(12), O(12), P(12), Q(12), R,(12), S(12), T(12), V(12), W(12), Z(12), A(14), B(13), C(13), K(13), O(13), P(13), Q(13), R(13), U(13), V(13), X(13), Z(13), A(14), B(14), C(14), D(14), E(14), H(14), I(14), J(14), L(14), M(14), N(14), O(14), P(14), Q(14), S(14), U(14), V(14), W(14), X(14), Z(14), A(15), C(15), E(15), G(15), I(15), L(15), S(15), T(15), A(16), C(16), D(16), F(16), H(16), I(16), K(16), L(16), M(16), N(16), O(16), S(16), T(16), V(16), and W(16). Objections based on hearsay generally cannot be resolved until the document is introduced at trial because trial provides the context necessary for the Court to determine whether or not the document is being admitted for the purpose of the truth of its statements rather than as evidence that the statement was made or as evidence of its effect on the reader or whether some other hearsay objection applies. To set forth all possible contexts in which these exhibits may be used at trial, before a determination is even made that they will be used, and, if so, when and how, is impossible. Defendant reserves the right to respond to Plaintiff's hearsay objections when, and if, these exhibits are introduced at trial. 11. Plaintiff has objected to some exhibits on the basis of F.R.E. 901 and to others on

the basis of "foundation." See e.g. Plaintiff's objections to Defendant's exhibits V(8), Y(8), 4

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K(10), Z(11), A(12), B(12), D(12), F(12), G(12), H(12), K(12), L(12), N(12), O(12), P(12), Q(12), R(12), S(12), T(12), W912), X(12), Z(12), A(13), K(13), Q(13), R(13), V(13), X(13), Z(13), B(14), D(14), E(14), H(14), I(14), J(14), L(14), N(14), O(14), P(14), Q(14), S(14), U(14), V(14), X(14), C(15), L(15), H(16), I(16), T(16), and X(16). Foundation is a component of F.R.E. 901. This Rule expresses the evidentiary requirement of authenticity as a condition precedent to admissibility. Defendant has waived all its F.R.E. 901 objections to Plaintiff's exhibits by letter dated April 4, 2008 pursuant to this Court's admonition that "[o]bjections to the authenticity of any exhibit will not be well taken absent the existence of good cause for believing the document to be inauthentic." Defendants anticipate that Plaintiff will cooperate to remove any similar impediments to admissibility as appropriate e.g. with respect to Defendant's trial exhibit V(8), the Forest Service copy of the Approved Preliminary Draft of the Final Development Plan at Wolf Creek Ski Area, FS-LM 1461-93. 12. Plaintiff objects to many of Defendant's trial exhibits on the basis of C.R.C.P. 26.

See objections to exhibits N(14), O(14), P(14), Q(14), S(14), U(14), V(14), X(14), L(15), V(16), and W(16). All but one of these exhibits falls within the bates range of L-M10745 to11424, all of which have been produced in discovery. Exhibit L(15) was also produced and it was an exhibit to a motion filed by Defendant in July 2006. Accordingly, to the extent the C.R.C.P. objection is predicated on the failure to produce, all these exhibits have been produced. II. 13. RESPONSES TO PLAINTIFF'S DEPOSITION OBJECTIONS Plaintiff's Objections to Deposition Testimony objects to the inclusion of attorney Such statements formulate the basis for,

statements and objections in the transcript.

clarifications to, and supplementation of the question at issue and are therefore a necessary 5

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framework for same.

In addition, inclusion of attorney objections assists the Court in

determining whether or not an objection has been made on the record and merits a ruling. Indeed, the failure to include such objections is misleading to the Court. Defendant does not intend to introduce attorney statements as testimonial evidence and expects that Plaintiff will act similarly. 14. Plaintiff objects to some designated passages on the basis of "relevance" or on the

basis of F.R.E. 4013 and 403. Pursuant to Fed. R. Civ. P. 26(a)(3)(B), objections on the basis of F.R.E.402 and 403 are not waived and therefore do not need to be asserted in an objection under Fed. R. Civ. P. 26(a)(3). In addition, until trial, it is difficult for a court to make relevance determinations because there is insufficient context. Accordingly, as to any other objection on the basis of F.R.E. 402 or 403 asserted by Plaintiff in its objections, Defendant's responses to those objections are reserved until trial. I. Kingsbury Pitcher ­ Vol. I 15. Defendant designated lines 129:16-130:23, not, as Plaintiff states lines 129:16-23.

Plaintiff states incorrectly that there is no answer and agrees to only 130:13-15. Page 130, line 23 is a completion of the answer begun on page 130, line 20. II. Kingsbury Pitcher ­ Vol. II 16. 17. Plaintiff objects to lines 162:16-162:20 on the basis of relevance only. See above. Plaintiff objects to lines 184:17-185:19 on the basis of hearsay. The testimony

involves a recitation to the deponent of a passage written by the deponent's CPA. It is offered

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F.R.E. 401 sets forth the definition of "relevant evidence." Rule 402 provides that "[e]vidence that is not relevant is not admissible." Accordingly, Defendant assumes that Plaintiff intended to cite F.R.E. 402.

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not for the truth of the matter but for its affect on the deponent. Accordingly, under F.R.E. 801, the passage is not hearsay. The passage is necessary in that it frames the deponent's response which is meaningless without inclusion of the passage. 18. Plaintiff objects to lines 229:14-229:21 (beginning with "...Service handbook...") There is a

on the basis that it is incomplete and on the basis of relevance (see above).

typographical error in the designation which should start at line 13 with "The Forest..." III. Jeff Berman ­ Vol. I 19. Plaintiff objects to lines 32:18-33:2 to the extent it attempts to introduce

deposition exhibit 214 as a trial exhibit, and on the basis of hearsay, and F.R.E. 401 and 403 (see above). The referenced passage may be used at trial to authenticate a document that has been identified on Defendant's trial exhibit list. 20. Plaintiff objects to lines 34:8-34:17 to the extent it attempts to introduce

deposition exhibit 215 as a trial exhibit, and on the basis of hearsay and F.R.E. 401 and 403 (see above). The referenced passage may be used at trial to authenticate a document that has been identified on Defendant's trial exhibit list. 21. Plaintiff objects to lines 52:1-52:13 on the basis of hearsay and incompleteness.

The cited passage includes comments made by Davey Pitcher, the agent of Plaintiff, whose statements are not hearsay under F.R.E. 801. To the extent the statement is incomplete, Plaintiff had the opportunity to counter-designate any portions of testimony needed to make the passage complete. 22. Plaintiff objects to lines 69:2-69:11 on the basis of hearsay, the deponent is being

asked questions regarding his recollection of a discussion as reflected in his own notes, 7

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authenticated earlier in his deposition, and about the meaning of the acronym "MDP" which the deponent testifies to mean the Master Development Plan for the Wolf Creek Ski Area. That is direct testimony, not hearsay. 23. Plaintiff objects to lines 103:1-103:6 to the extent it attempts to introduce hearsay The cited passage contains

notes and on the basis of F.R.E. 401 and 403 (see above).

authentication for deposition exhibit 216, which has been identified as a trial exhibit herein. 24. Plaintiff objects to lines 111:19-111:21 on the basis that it is confusing and

incomplete. The cited passage contains the following testimony: "we felt we did not have a very strong appeal, and so we were trying to get what we could out of the appeal." To the extent Plaintiff finds this passage incomplete, Plaintiff had the opportunity to counter-designate additional deposition testimony to clarify or expand. In fact, Plaintiff did counter-designate lines 110:19-111:6. 25. Plaintiff objects to lines 114:20-114:23 to the extent it attempts to introduce

hearsay notes and on the basis of relevance. The cited passage authenticates deposition exhibit 219 which has been designated as a trial exhibit herein. 26. Plaintiff objects to lines 132:5-132:14 to the extent it attempts to introduce

hearsay notes and on the basis of F.R.E. 401 and 403 (see above). The cited passage includes further authentication of a deposition exhibit previously identified. 27. Plaintiff objects to lines 134:12-134:14 on the basis that it is confusing and

contains no answer. The citation includes a typographical error: it should read 134:12-134:15.

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28.

Plaintiff objects to lines 167:8-167:11 on the basis that it is confusing and

contains only a partial answer. The cited designation contains a typographical error and should read 167:8-167:16. 29. Plaintiff objects to lines 168:3-168:7 on the basis that it is confusing and contains

only a partial answer. The cited passage includes only a partial answer because only a partial answer was needed. The cited provision reads: "Regarding Forest Service access, if we had not had that settlement agreement, according to Mr. Hont's own submission in the final application to Mineral County, they should have been able to begin development without an EIS." If Plaintiff's found this confusing they could have counter-designated additional testimony. They did not. Respectfully submitted this 7th day of April, 2008 BERG HILL GREENLEAF & RUSCITTI LLP ___s/Kim A. Tomey________ George V. Berg, Jr. Kim A. Tomey 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-1601 Email: [email protected] [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of April, 2008, I electronically filed the foregoing DEFENDANT'S COMBINED RESPONSE TO PLAINTIFF'S OBJECTIONS TO TRIAL EXHIBITS AND DESIGNATION OF DEPOSITION TESTIMONY with the Clerk of the Court using the CM/ECF system which will send notification to such filing to the following email addresses,

Andrew R. Shoemaker Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Jim Moriarty Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Cynthia A. Mitchell Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected]

Robert D. Erben Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] David Krivit Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Michael E. McLachlan McLachlan & Underell, LLC 813 Main Avenue, Suite 308 Durango, CO 81301 [email protected]

____s/ Linda D. Smith___

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