Blakeslee v. Shaw Infrastructures, Inc.

Filing 189

ORDER: re Motion for Remedial Order and to Show Cause 158 , each party shall file and serve responses to the other party's objections to deposition designations by July 5, 2012. Signed by Judge Sharon L. Gleason on 06/28/2012. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAUL BLAKESLEE,

)
)
Plaintiff,
)
)
vs.
)
)
SHAW INFRASTRUCTURE, INC.,
)
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Defendant.
)
________________________________)

Case No. 3:09-cv-00214-SLG

ORDER RE MOTION FOR REMEDIAL ORDER AND TO SHOW CAUSE
Before the court at docket 158 is Shaw’s motion for a remedial order regarding
the plaintiff’s deposition designations. Shaw correctly notes that the Pretrial Order in
this case requires a party who intends to offer a witness’s testimony by deposition in lieu
of live testimony to “specify the inclusive pages from the deposition which are proposed
to be offered.” 1

Mr. Blakeslee’s deposition designations include the entirety of six

depositions, designating from page 1, line 1 to the end of each deposition. 2 Shaw
estimates that these depositions total nearly 20 hours of testimony. 3 Shaw’s motion
asserts the designation of the entirety of these depositions violates the requirement of
the Pretrial Order, particularly in light of the numerous in limine rulings that have been
entered in this case. On the same day that it filed this motion, Shaw also filed extensive
objections by page and line to the plaintiff’s deposition designations; among the
1

Docket 136 at 3.

2

In a Notice filed on June 22, 2012, the plaintiff indicated an intent to call one of those
witnesses, Ms. Bea Campbell, in person. (Docket 179) This court interprets that Notice to
constitute a withdrawal of the plaintiff’s deposition designations for Ms. Campbell.

3

Docket 158 at 6, n.6.

objections are assertions that certain designated portions of each of the depositions are
precluded by the in limine rulings previously ordered by the court. 4
In its opening memorandum in support of the motion, Shaw sought to either
require the plaintiff to appear and show cause why he should not be sanctioned for the
making of the blanket designations, or alternatively, Shaw asserted that Mr. Blakeslee
should be ordered to “immediately designate the deposition testimony that he actually
will use at trial, with sufficient time for Shaw to consider its counter-designations.”5
Mr. Blakeslee opposed the motion at docket 174. He asserts that he plans to
use the entirety of each of the designated depositions at trial, as permitted by federal
Civil Rule 32, and hence designated each in its entirety. 6
In reply at docket 178, Shaw maintains that use of the entirety of these
depositions would run counter to the in limine orders entered in this case.
While Rule 32 permits a party to use some or all of a deposition at trial, that rule
expressly limits the admissibility of deposition testimony to what “would be admissible
under the Federal Rules of Evidence if the deponent were present and testifying.” 7 The
in limine rulings issued in this matter are determinations as to admissibility under the
Federal Rules of Evidence. As such, they apply here so as to preclude the admission of
certain portions of the depositions.
4

Docket 156.

5

This court interprets the plaintiff’s deposition

Docket 158 at 12-13.

6

Docket 174 at 3 (“We determined that affording the jury the opportunity to watch full
depositions would allow the jurors the opportunity to evaluate the manner, credibility and
reliability of these witnesses.”).

7

Civil Rule of Fed. Proc.32 (a)(1)(B).

3:09-cv-00214-SLG, Blakeslee v. Shaw
Order re Motion for Remedial Order and to Show Cause
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designations as a clear election to play the entirety of each of these videotaped
depositions to the jury during the approximate three days of trial time that the plaintiff
has represented to this court he needs for his case in chief. Thus, each of these
depositions will be played to the jury in its entirety during the plaintiff’s case in chief,
excepting only those portions as to which this court sustains the defendant’s objection
to admissibility pursuant to the Federal Rules of Evidence, including as previously
delineated in the in limine rulings.
With respect to the plaintiff’s deposition designations, the court’s pretrial task,
which is certainly not atypical in civil litigation, is to rule on each of Shaw’s objections to
the depositions that Mr. Blakeslee has designated. In so doing, this court will apply the
Federal Rules of Evidence and the in limine rulings in this action that have interpreted
those rules with respect to certain topics. The goal is that prior to trial, an edited, fully
admissible version of each designated deposition is prepared consistent with those
rulings for presentation to the jury. 8
Likewise, it is this court’s intent to rule on each of Mr. Blakeslee’s objections to
Shaw’s deposition designations in advance of trial so that edited versions of those
designations consistent with this court’s rulings are prepared for the jury as well.
Upon reviewing the parties’ deposition designations and objections that have
been filed to date, this court has determined that in ruling on the objections it could well
be of considerable assistance to the court for each party to provide a response to the
8

It may be that additional editing of the deposition designations will be required during the
course of trial before a deposition is played based upon the other evidence that is admitted
during trial, as contemplated in certain in limine rulings. But any such additional editing will be
addressed by the court outside of the presence of the jury before, and not while, each
deposition is played to the jury.
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Order re Motion for Remedial Order and to Show Cause
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other party’s objections. Specifically, this court seeks the plaintiff’s specific response to
each of the objections that the defendant filed to the plaintiff’s deposition designations at
docket 156, by page and line. And this court seeks the defendant’s specific response to
each of the objections that the plaintiff has made to the defendant’s designations at
docket 157, by page and line. To provide just one example, the defendant has objected
to page 5, line 7 through page 6, line 14 of Gary Barkhurst’s deposition as both
irrelevant and exceeding the limitation in the order at docket 121. 9 (Docket 156 at 1)
The plaintiff’s response to this objection should either withdraw this testimony, or set
forth why the plaintiff asserts the testimony is relevant and why it does not exceed the
limitations in the order at docket 121. This request for additional briefing is not an
opportunity for either party to designate any additional designation testimony.
Each party shall file and serve responses to the other party’s objections to
deposition designations in a manner consistent with this order by July 5, 2012.
Shaw’s motion for a remedial order is GRANTED to the extent set forth above
that directs each party to file responses to the other party’s objections to depositions
designations. Shaw’s request for sanctions is DENIED.
DATED at Anchorage, Alaska, this 28th day of June, 2012.

/s/ Sharon L. Gleason
United States District Judge

9

See Docket 156 at 1.

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Order re Motion for Remedial Order and to Show Cause
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