Free Objections - District Court of Colorado - Colorado

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

Document 300

Filed 03/21/2008

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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 LEAVELL-McCOMBS JOINT VENTURE'S OBJECTIONS TO PLAINTIFF'S TRIAL EXHIBITS ______________________________________________________________________________ Defendant, Leavell-McCombs Joint Venture, d/b/a The Village at Wolf Creek ("the Joint Venture"), through its undersigned counsel, hereby respectfully submits its objections to the trial exhibits designated by Plaintiff Wolf Creek Ski Corp. ("Ski Corp.") as follows: 1. On or about March 14, 2008, subsequent to the filing of the parties' trial exhibit

lists attached to the proposed Pretrial Order filed on January 18, 2008, Plaintiff produced a second trial exhibit list containing additional exhibits not previously designated but that were in the Ski Corp.'s possession prior to January 18, 2008. The Joint Venture objects to all such newly designated exhibits not contained on the list filed on January 18, 2008. This includes specifically exhibit nos. 427-444. These newly added exhibits constitute amendments to the Pretrial Order. Under the terms of the Pretrial Order and Fed.R.Civ.P., Plaintiff may not amend their trial exhibit list without a showing of good cause and no good cause has been shown.

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2.

In addition, the Joint Venture further objects to any exhibit that cannot be

identified because it does not contain a bates identifier, sufficient explanatory information, or any other descriptive information necessary to enable positive identification e.g. exhibit nos. 6, 121, 136-154, 160, 178, 186, 189, 191, 194, 195, 197-201, 206-207, and 213-214. This

objection includes multiple page exhibits that have been designated using a single bates number as the Joint Venture is unable to tell where the designated exhibit is intended to end. For example, Plaintiff's exhibit number 112 is described as "Memo-From Bob Honts To: B.J. McCombs, Gary Woods, Pete Leavell, Charles Leavell L01328." The referenced document is two pages long. The Joint Venture specifically reserves the right to propounded additional objections to these exhibits once they have been positively identified and Plaintiff's exhibit list amended to clearly reflect those identifications. 3. The Joint Venture further objects to all designated exhibits that have not been

disclosed to the Joint Venture, including, but not limited to, (1) all documents obtained by subpoena from Tetra Tech, Inc. but not subsequently disclosed as required under Fed.R.Civ.P. 26(a)(a) and 26(e) which appear to include all exhibits designated by Plaintiff with the bates identifier "TT" as exhibit nos. 338, 340-349, 351-355, 359, 364-367, and 373-374; and (2) plaintiff's exhibit nos. 399-426. 4. The Joint Venture further objects to Plaintiff's designation of its own expert

reports, such reports are inadmissible hearsay under Fed.R.Evid. 801 and 802 and contain opinions outside the scope of the designated expert's area of expertise and impermissible opinion testimony under Fed.R.Evid. 701.

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5.

The Joint Venture further objects to the designation of pleadings in the Colorado

Wild Action, Case No. 06-cv-2086, to the extent the Ski Corp. intends to use these pleadings to attempt to demonstrate any wrongdoing or impermissible character evidence regarding Mr. Honts, Mr. McCombs or the Joint Venture. Such evidence lacks relevance and is therefore not permitted under Fed.R.Evid. 401 and 402. The Joint Venture further objects that such evidence is unfairly prejudicial to the Joint Venture under Fed.R.Evid. 403 and inadmissible character evidence under Fed.R.Evid. 404. 6. The Joint Venture further objects to any exhibit that is incomplete or over-

inclusive of non-related documents, or duplicative of those designated by Defendant and not the best evidence available under Fed.R.Evid. 1002. The parties are working diligently to remove any such duplicates. An itemized list of the Joint Venture's objections is attached hereto as Exhibit A. 7. The Joint Venture was unable to locate the documents described as Plaintiff's

exhibit numbers 330, 337, 350, 356, 357, 358, and 379-381. The Joint Venture reserves the right to supplement its objections once these exhibits are located or obtained from Plaintiff's counsel. 8. The Joint Venture and specifically reserves the right to introduce for

impeachment purposes or as an admission of a party opponent any exhibit on Plaintiff's list including exhibits to which the Joint Venture has objected.

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Respectfully submitted this 21st day of March, 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] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of March, 2008, I electronically filed the foregoing DEFENDANT LEAVELL-McCOMBS JOINT VENTURE'S OBJECTIONS TO PLAINTIFF'S TRIAL EXHIBITS with the Clerk of the Court using the CM/ECF system which will send notification to such filing to the following e-mail 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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