Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

G. Gregory Eagleburger, #002695 The Eagleburger Law Group 2999 N. 44th Street, Suite 303 Phoenix, Arizona 85018 (602)840-6533 Fax (602)808-9402 Attorney for Individual Defendants

IN THE UNITED STATES DISTRIC COURT DISTRICT OF ARIZONA

Awareness Corporation, Plaintiff, v. GROUP VISION INTERNATIONAL, L.L.C., a Michigan limited liability company; KELLY MATTICE and PAIGE MATTICE, husband and wife; KEVIN and CHERYL MACGREGOR, husband and wife dba THE LIFE TREE; LYNN and RENIE REMELSKI; and DAVID and SUZANNE BETTS, Defendants.
And related cross claims and third party actions.

Case No. CV03-2024-DGC INDIVIDUAL DEFENDANTS RESPONSE TO AWARENESS' MOTION IN LIMINE NO. 4

Individual Defendants hereby Respond to Awareness Motion in Limine No. 4 to Exclude Deposition Testimony of Dr. Barbara Timmermann and to compel her attendance at trial, or to permit Awareness to conduct a Trial Deposition and respectfully

24 25 26 27 28 Case 2:03-cv-02024-DGC Document 383 Filed 08/15/2005 Page 1 of 3

contend that Awareness knew prior to and at the time of taking Dr. Timmerman's deposition that she may not attend the trial because of her occupation. This Response is further supported by the following Memorandum of Points and

1 2 3 4 5 6 7 8 9

Authorities and the entire Court record in this case. MEMORANDUM OF POINTS AND AUTHORITIES Awareness' designated member who is an expert in deposing experts, Brian Schulman, specifically ignored at the time of her deposition (December 10, 2004) as to her ability to attend the trial if and when set and was told that she would be out of state after July 2005. (See Deposition of Barbara Timmerman pp. 35-37 & 125 attached). However, until after the Pre-Trial Order was submitted, Awareness did nothing to insure that Dr. Timmerman would attend the trial (they could have subpoena her with an open

10 11 12 13 14 15 16 17 18 19 20

ended date) or request from the court another deposition opportunity while she was still in Arizona. It did neither. Awareness cites no legal authority for its motion/request because there is none. Rule 32(a)(3) of the Federal Rules of Civil Procedure clearly states that the deposition of a witness can be used "for any purpose" at trial or hearing if the witness is more than a 100 miles from the court house or unable to attend or the party offering the deposition has been unable to procure the attendance by subpoena. Dr. Timmerman is more than 100 miles from the courthouse. Her Deposition can therefore be used.

21 22 23 24 25 26 27 28

Awareness' motion is intended purely to increase the cost of the litigation to the Individual Defendants or allow Awareness to have a "second bite" after close of discovery. Therefore, Awareness' Motion in Limine No.4 should be denied.

RESPECTFULLY SUBMITTED this 15th day of August, 2005.
Case 2:03-cv-02024-DGC Document 383 -2Filed 08/15/2005 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:03-cv-02024-DGC Document 383 -3Filed 08/15/2005 Page 3 of 3

THE EAGLEBURGER LAW GROUP By: /s/ G. Gregory Eagleburger Attorney for Individual Defendants

The ORIGINAL of the foregoing electronically filed with the Clerk of the Court this 15th day of August, 2005 and a COPY hand-delivered to: The Honorable David G. Campbell U. S. District Court of Arizona 401 West Washington Phoenix, Arizona 85003-2118 And a copy mailed to: Steven M. Weinberg, Esq. Greenberg Traurig, LLP 2375 E. Camelback Rd., Suite 700 Phoenix, AZ 85016 Attorneys for Plaintiff Curtis D. Drew, Esq. 2342 N. Pima Scottsdale, AZ 85257-2405 Attorney for Group Vision International, LLC /s/ Jill Robinson