Free Objections - District Court of Colorado - Colorado

Case 1:03-cv-02474-WYD-PAC

Document 109

Filed 09/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-D-2474 (PAC) CHARLOTTE SCHNEIDER AND DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, and DAVID MASON, individually, Defendants.

DEFENDANTS' OBJECTIONS TO PLAINTIFFS' DESIGNATIONS OF DEPOSITION TESTIMONY OF LOUISE ADOLPHSON AND JOHN CRAMER AND COUNTER-DESIGNATIONS _____________________________________________________________________________ COMES NOW Defendants, Landvest Corporation and David Mason, and pursuant to Federal Rules of Civil Procedure and this Court' Pretrial Order, notifies the Court of its s objections to Plaintiffs'designation of the following deposition testimony as well as its counter-designations: A. LOUISE ADOLPHSON 1. Page 17 line 15 through 17.

Objection. Plaintiffs' designation does not identify the witness' entire response to the s question designated and therefore is incomplete and a mischaracterization of the witness' s testimony and should be excluded. In the event the Court admits this testimony, it should admit Ms. Adolphson'entire response recorded on page 17, line 17 through 20. s

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2.

Page 27 line 24 through 25.

Objection. Plaintiffs' designation does not identify the witness' entire response to the s question designated and therefore is incomplete and is a mischaracterization of the witness' s testimony and should be excluded. In the event the Court admits this testimony, it should admit Ms. Adolphson'entire response recorded on page 27, line 20 through 25. s 3. Page 34 line 20 through line 24.

Objection. Plaintiffs' designation does not identify the witness' entire response to the s question designated and therefore is incomplete and is a mischaracterization of the witness' s testimony and should be excluded. In the event the Court admits this testimony, it should admit Ms. Adolphson'entire response recorded on page 34, line 19 through page 35, line 1. s 4. Page 37 line 14 through line 24.

Objection. Plaintiffs' counsel' question calls for hearsay testimony and speculation. s This witness is asked to testify as to testify as to what other couples do at their workplace. There is no foundation that this witness personally observed this. Therefore, the witness'testimony is s either hearsay or speculation and should be excluded. 5. Page 39 line 17 through line 22.

Objection. Plaintiffs' counsel' question calls for hearsay testimony and speculation. s This witness is asked to testify as to testify as to what another witness is aware of. Therefore, the witness'testimony is either hearsay or speculation and should be excluded. s 6. Page 40 line 2 through 10.

Objection. Plaintiffs' question calls for hearsay testimony. This witness is asked to testify as to testify as to what another witness, John Cramer, believed. The witness'testimony, s therefore, is hearsay and should be excluded.

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7.

Page 56 line 15 through page 57 line 4. Plaintiff' counsel' question calls for hearsay testimony. s s Further, the

Objection.

witness'response is hearsay and is not based on personal knowledge. This witness is asked to s testify as to what she was told by John Cramer or Neil Murray. These statements were not made in court and are hearsay. In response to the question, the witness speculates that " was it

understood by all of the managers"but does not testify as to the basis of her knowledge. Therefore, the question calls for hearsay and the witness' answer is not based on personal s knowledge and should be excluded. 8. Page 57 line 8 through line 14.

Objection. Counsel'question asks the witness if she was paid on an hourly basis. This s question is ambiguous and misleading in that counsel does not explain " on an hourly basis" paid . This is clear by the testimony given by the witness just before this question was asked, whereby the witness testified that "understood that I was salary and I could work out the hours the way I I wanted to." The witness earned a salary although she was a non-exempt employee. She was entitled to an hourly rate of pay for hours worked outside of the contract. She was not entitled to an hourly wage and therefore the question as to whether she was paid on an hourly basis is confusing and misleading. Therefore, Plaintiffs' designation should be excluded. B. JOHN CRAMER 1. Page 21 line 15 through 17, page 22 line 1 through 2. Plaintiffs'counsel' question is ambiguous and misleading. s Plaintiffs'

Objection.

counsel does not ask the witness what he trained; rather, counsel suggests that the only training they received was to record four hours a day. The witness responds " That'basically what was s put out by the company, yes. I' like to expand on that answer." Plaintiffs' d counsel, however,

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refuses to let him expand, stating that this is her deposition and " will get back to that." In we doing so, Plaintiffs' counsel parses out testimony from the witness regarding what training was actually given to only make the statement that four hours were recorded. The witness was not given the opportunity to state whether this was when the manager worked four hours, when the manager worked less than four hours or when the manager worked more than four hours. Therefore, Plaintiffs' counsel'question is ambiguous and misleading and Plaintiffs' s designation should be excluded. In the alternative, Defendants request that they be allowed to counter-designate the witness' testimony recorded at page 72, lines 25 through page 73, line 1 through 7. 2. Page 30 lines 1 through 25.

Objection. Plaintiffs' designation encompasses questions which call for hearsay and refer to a recorded statement that contains hearsay within hearsay. Plaintiffs' counsel examines the witness about a written statement made by him to the Department of Labor. Counsel reads the written statement out loud and asks the witness to verify a statement in the document about what other third parties had stated. Neither this letter, nor the statements contained in this letter, fall within a hearsay exception. Therefore, the designation is a line of questions and answers

containing hearsay and hearsay within hearsay and should be excluded. 3. Page 49 line 1 through line 7.

Plaintiffs' designation does not identify the complete question asked by counsel and omits the witness' entire response to a follow-up question. s Therefore, the designation is

incomplete and a mischaracterization of the witness'testimony and should be excluded. In the s event the Court admits this testimony, it should admit the entire line of questioning and response recorded on page 48, line 25 through page 49, line 11.

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4.

Page 51 line 1 through 4 and line 7.

Objection. Plaintiffs' counsel' question is ambiguous and a mischaracterization of the s witness' prior testimony. Plaintiffs' counsel asks " how many times did you report . . . that [Schneider] was complaining about not being paid for all of her hours worked? The witness had just testified that " had some managers that are complaining that they can'get the job done in a I t specific period of time that is allotted and they are wanting overtime pay." Counsel' question s either mischaracterizes the witness' testimony or assumes facts not in evidence. Therefore, s Plaintiffs' counsel'question is ambiguous and a mischaracterization of the evidence and should s be excluded. 5. Page 57 line 16 through 18 and line 20 through 21.

Objection. Plaintiffs' counsel' question calls for speculation. This witness is asked to s testify as to testify as to what he might have done. Therefore, the witness' testimony is s speculation and should be excluded. 6. Page 58 line 13 through line 15 and line 19.

Objection. Plaintiffs' counsel' question is ambiguous and a mischaracterization of the s evidence. Plaintiffs' counsel asks " anyone ever explain to you why Landvest had a policy of Did requiring employees to record four hours of work each work day."This witness does not testify that Landvest had such a policy. Although Plaintiffs would like to introduce evidence that such a policy existed through their own counsel' testimony, counsel' testimony is not evidence. s s Therefore, Plaintiffs' designation is misleading and is a mischaracterization of the evidence and should be excluded.

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7.

Page 64 line 18 through 21 and page 65, line 2.

Objection and request for counter-designation. Plaintiffs' designation does not identify the witness' entire response to the question designated and therefore is incomplete and a s mischaracterization of the witness' testimony and should be excluded. In the event the Court s admits this testimony, it should admit Mr. Cramer'entire response recorded on page 64, line 18 s through 65, line 2. Respectfully submitted,

KUTAK ROCK LLP

By: s/ Stacia G. Boden 9/16/2005 Alan L. Rupe, KS Bar # 08914 Stacia G. Boden, KS Bar # 20295 8301 East 21st Street North, Suite 370 Wichita, Kansas 67206-2295 Telephone: (316) 609-7900 Facsimile: (316) 630-8021 Heather Davis, CO Bar #30056 Mark C. Willis, CO Bar #31025 1801 California Street, Suite 3100 Denver, Colorado 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on the 16th day of September, 2005, I electronically filed the foregoing DEFENDANTS' OBJECTIONS TO PLAINTIFFS' DESIGNATIONS OF DEPOSITION TESTIMONY OF LOUISE ADOLPHSON AND JOHN CRAMER AND COUNTER-DESIGNATIONS with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following:

Donna Dell' Olio CORNISH AND DELL' OLIO 431 North Cascade Avenue, Suite 1 Colorado Springs, CO 80903 Phone: (719) 475-1204 Facsimile: (719) 475-1264 [email protected] Attorney for Plaintiffs s/ Stacia G. Boden 9/16/2005 Stacia G. Boden KUTAK ROCK LLP [email protected]

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