Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02462-WYD-PAC

Document 72

Filed 12/13/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2462-WYD-PAC BOBBY PADILLA, Plaintiff, v. SAN LUIS CENTRAL RAILROAD COMPANY, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO HAVE OBJECTION/COMMENT OF THE DEFENDANT RULED UPON IN TERMS OF THE PRESERVATION DEPOSITION OF DAVID WONG, M.D. ______________________________________________________________________________ Plaintiff has filed an unusual motion, which asks this Court to rule, in advance of trial, upon the admissibility of an exhibit which was identified in a deposition. Counsel for Plaintiff "moved" for the admission of the exhibit during the deposition, although no judicial officer was present who could admit the document into evidence at that time. Counsel for Plaintiff then offered the witness as an expert, and counsel for Defendant stated that "he may testify as an expert." It is not clear what relief Plaintiff is seeking from his motion. If he is seeking a ruling upon the admissibility of an exhibit identified during the deposition, it remains the understanding of the undersigned that the appropriate procedure would be to offer the exhibit when the deposition is used during trial and the trial judge is present. No other action was requested by Plaintiff during the deposition, and no other relief has been requested in the motion. The

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Case 1:03-cv-02462-WYD-PAC

Document 72

Filed 12/13/2005

Page 2 of 3

admissibility of the exhibit identified by the deponent should be determined during trial, by the trial judge. See BAICKER -MCKEE, ET AL., FEDERAL CIVIL RULES HANDBOOK, at 668 (2006). s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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Case 1:03-cv-02462-WYD-PAC

Document 72

Filed 12/13/2005

Page 3 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 13, 2005, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO HAVE OBJECTION/COMMENT OF THE DEFENDANT RULED UPON IN TERMS OF THE PRESERVATION DEPOSITION OF DAVID WONG, M.D. with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Jack Kintzele, Esq. [email protected] Attorney for Plaintiff s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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