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Hoyt A. Fleming v. Escort

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO


June 4, 2012

HOYT A. FLEMING, PLAINTIFF,
v.
ESCORT, INC. AND BELTRONICS USA, INC., DEFENDANTS.

The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

The parties held a telephone conference with the Court's Law Clerk, and requested two points of clarification which were submitted to me for review. I discuss those issues below.

Demonstrative Exhibits

The parties request clarification regarding the deadline for submitting demonstrative exhibits. In the order setting trial, I set a deadline for the exchange of "all trial exhibits" and "all exhibit lists" by May 7, 2012. See Order Setting Trial (Dkt. No. 172) at p. 2. I did not intend for that deadline to include the exchange of demonstrative exhibits. Later, in its Pretrial Order, I directed counsel to provide a list of witness and the demonstrative exhibits they will use 36 hours in advance of their testimony. See Pretrial Order (Dkt. No. 237). That was the deadline I intended for demonstrative exhibits. Thus, I will not exclude demonstrative exhibits that were not exchanged on May 7, 2012.

Escort makes a persuasive argument that if a witness is going to use an involved demonstrative exhibit -- like an animation or complex chart -- the 36-hour rule gives very little time to develop any response. Fleming agrees and suggest increasing the time. I agree and will direct counsel to provide demonstratives by no later than 5:00 p.m. three business days before their intended use. For example, a party expecting to use a demonstrative with a witness on a Thursday morning at 8:30 a.m. must have provided that demonstrative to opposing counsel the previous Monday by 5:00 p.m. And a party expecting to use a demonstrative with a witness on a Monday morning must have provided that demonstrative to opposing counsel the previous Wednesday by 5:00 p.m. Exhibit Objections

In its Pretrial Order, I required that "[a]t least one week before trial, counsel will provide the Court with (1) a list of trial exhibits which have not been agreed upon, (2) the basis for the objection, and (3) the response to those objections." Id. at p. 1. Fleming requests that the Court order the parties to exchange a list of all objections they have to their opponent's exhibits before holding a conference on the trial exhibits. While this advance knowledge would be helpful, the lists will likely be a mere repetitive listing of technical objections. The better course may be that suggested by Escort's counsel, involving a "horse-trading" session where objections are bartered for concessions. Ultimately, Escort's counsel recommended that I not direct the parties but simply hold to the original deadline set in the Pretrial Order, however that is accomplished. I agree.

In accordance with the Memorandum Decision set forth above, NOW THEREFORE IT IS HEREBY ORDERED, that the Pretrial Order (docket no. 237) is AMENDED, so that a party is required to provide a list of the demonstrative exhibits they intend to use at trial to the opposing party by 5:00 p.m. three business days in advance of the time they intend to use those demonstrative exhibits at trial.

20120604

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