Fleming v. Escort Inc. et al

Filing 248

MEMORANDUM DECISION AND ORDER amending 237 Pre-Trial Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HOYT A. FLEMING,
Plaintiff,

Case No. 1:09-CV-105-BLW

v.
ESCORT, INC. and BELTRONICS
USA, INC.,

MEMORANDUM DECISION AND
ORDER

Defendants.

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.
Memorandum Decision & Order - 1

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.
ORDER
Memorandum Decision & Order - 2

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.

DATED: June 4, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 3