Document Ra6DD5L173KZ2b2Q3L0wyd60B

BRADLEY & MERRELL JONES, JONES, CLOSE & BROWN, CHARTERED Seventh Floor -- Bafikrof America Plaza 300 South Fourth Street Las Vegas, Nevada 89101-6026 (702) 385-4202 M ESSAG E FROM XERO X 7024: (7021 385-1655 DATE: February 22, 1993 TO: Ralph Bradley c/o Marriott Pavi on Room 606 FAX #: (314) 331-9029 PH O N E# : (314) 421-1776 FROM: Lynda Garfinkle CLIENT/MATTER: Nevada Power v. Monsanto CLIENT/MATTER NO.: 11927.2 DOCUMENT(S) DESCRIPTION: Deposition research; 30(b)(6) notices for Monsanto and Westinghouse NUMBER OF PAGES ( ncluding cover page): ( / -r MESSAGE: THIS TELECO PY IS INTENDED ONLY FOR THE ADDRESSEE NAMED ABO V E U MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL IFYOU HAVE RECEIVED THE TELECO PY IN ERROR, PLEASE NOTIFY US IMMEDIATELY BYTELEPH O N E DESTROY ALL1COPIES, AND DO NOT DISSEMINATE THE INFORMATION TO AN YO N E THANK YOU FOR YOUH ASSISTANCE IF YOU EXPERIENCE PROBLEMS WITH THIS TRANSMISSION, please call (702) 385-4202 and ask for: Robert Osterloh, Ext. 615 DOCUMENTARY EVIDENCE 9.4 DEPOSITION TRANSCRIPTS 9.4 There are two principal uses to be made of deposition transcripts at trial: (1) to) cross-examine an adverse witness by impeaching him or her with prior inconsistent statements made under oath at a prior deposition, and (2) to (substitute entirely for the personal appearance of a witness. Occasionally it will also be useful to offer a summary of the deposition testimony o f a witness who is not central to the case. The use of deposition transcripts should be planned carefully before trial so that the technical requirements of the rules can be met and the transcripts themselves can be handled with ease in the courtroom. Because all deposition transcripts contain out-of-court statements, they are governed by the hearsay rules. Special exceptions have been created, however, for deposition transcripts. Some of these are in the Federal Rules o f Civil Procedure and others are in the Federal Rules of Evidence.J18 The rules have a number of technical requirements that are important to master. whose deposition: some rules distinguish between the deposition of a party to the action (including various kinds of employees and agents) and the deposition of a witness who is not a party. whose use o f the deposition: some rules permit the use of a deposition by any party; others permit use only by an adverse party. what use of\ihe deposition: some rules permit use for any purpose once the requirements as to the deponent and the party using the deposition are met; others permit use only for a specified purpose. 18. The rules are easily distinguished by their numbering system. The Federal Rules of Civil Procedure, first adopted in 1937, are numbered 1through 86. The Federal Ru es of Evidence, adopted in 1975, are numbered 101 through 1103. 301 9.4.1 TANGIBLE E . ,ENCE Each of these technical requirements is discussed below with respect to specific examples.jThe examples, however, do not cover all possible uses of depositions at trial. ____ 9.4.1 CroIss*ExamiInatlon The most common use of deposition transcripts is in cross-examina tion. The fitn ess gets on the stand and during direct examination says something directl>j contrary to a statement he or she made at deposition some months earlier. Rule 801 (d)(1)(4) applies here: A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement] and the statement is ... inconsistent with his testimony, and was given under oath subject to the penalty of perjury ... in a deposition. (Emphasis added.) The deposition transcript can be used for impeachment as soon as a foundation can be laid that this witness was the one who appeared at the deposition from which the transcript you are using was produced. Example #7 Q. Vis. Witness, weren't you heavily in debt at the time you executedjthe document that has been marked as plaintiff's Exhibit 6? A. ijto. Q. Ms. Witness, on October 5,1988 you appeared for your deposition in your lawyer's office at 1700 Pennsylvania Avenue, N.W. in Washington, D.C., right? A. Yes. Q. At that time you were put under oath and you swore to tell the truth, did you not? [ A. Yes. DOCUMENTARY EVIDENCE 9.4.1 Q. At that time I asked you the following question (reading from,lhe transcript) : "Weren't you heavily in defat at the time you signed the letter to Mrs. Vulture?" and you said in response to that question: "Yes." You remember that, don't you? A. Yes, I said that. Q, And that was the truth, w asn't it? A. Yes. When the witness admits that she said something different at deposition and does not argue about what it was, it is not necessary (or proper) to put the deposition transcript into evidence as an exhibit. Sometimes a witness will be reluctant to say he or she remembers saying something different. In that case the deposition transcript is used. Example #2 (Same circumstances as above) Q. You remember that, don't you? A. I don't remember that. Q. Your Honor, I request that this excerpt from the deposi tion transcript, duly attested by the court reporter, be marked as plaintiff's Exhibit 13 and admitted in evidence. Court: Admitted. Counsel: Your Honor, may I read what has been marked as plaintiff's Exhibit 13 to the jury? Court: You may. Counsel: (Reads excerpt again) 303 9.4.2 TANGIBLE EVIDENCE Rule 613(a) does away with any requirement that the witness be shown his or her prior statement before being examined on it. The rule does require, however, that the prior statement be shown to counsel on request. This can be done by referring during questioning to the page and line number of the deposition transcript where the witness's statement appears, assuming that opposing counsel has his or her own copy of the transcript. 9.4.2 Substitution for a Live Witness There are a number of situations where deposition transcripts would be helpful at trial because the witness is not going to appear at all. This occurs when: (1) the witness is busy and would prefer not to appear as a matter of convenience; (2) the witness refuses to appear; (3) the witness cannot appear because he or she is dead, ill or incapacitated; (4) the witness is adverse and you would prefer that he or she not appear as a part of your case because you don't want to take that risk. In each of these cases, helpful portions of the deposition transcript can be used at trial. In planning for such situations, if the deposition transcript to be used at trial will require more than 10 minutes to read, consideration should be given to videotaping the deposition. It is very difficult to read from a transcript for more than 10 minutes and sustain the attention of any but the most avid juror.19 If your witness is busy and would prefer not to appear at trial, you are entitled as a matter of right to use his or her deposition if the witness is located more than 100 miles from the place of the trial (as long as you didn't temporarily send him or her there).20 If the witness is closer than 100 miles, you must make a motion to get permission to use the deposi tion in place of live testimony.21 This method is often used for expert testimony from medical doctors or other specialists who are needed to meet emergencies or other important commitments that would.be inter rupted if they were called to testify. The format is quite simple: 19. See discussion of videotaped depositions in section 5.3. 20. Fed. R. Civ. P. 32(a)(3)(B). . 21. Fed. R. Civ. P. 32(a)(3)(E). 304 1 J. RANDALL JONES, ESQ. CHARLES H. McCREA, SR., ESQ. 2 DOUGLAS M. COHEN, ESQ. JONES, JONES, CLOSE 3 & BROWN, CHARTERED 700 Bank of America Plaza 4 300 South Fourth Street Las Vegas, Nevada 89101-6026 5 Telephone: (702) 385-4202 6 PAUL E. MERRELL, ESQ. RALPH A. BRADLEY, ESQ. 7 BRADLEY & MERRELL C / O JONES, JONES, CLOSE 8 & BROWN, CHARTERED 700 Bank of America Plaza 9 300 South Fourth Street Las Vegas, Nevada 89101-6026 10 Telephone: (702) 385-4202 11 DAVID S. McCREA, ESQ. McCREA & McCREA 12 119 South Walnut Street Post Office Box 1310 13 Bloomington, Indiana 47402 Telephone: (812) 336-4840 14 FREDERICK M. BARON, ESQ. 15 RUSSELL WILLS BUDD, ESQ. JANE N. SAGINAW, ESQ. 16 BRIAN D. WEINSTEIN, ESQ. PAUL F. DONSBACH, ESQ. 17 BARON & BUDD 3102 Oak Lawn Avenue, Suite 1100 18 Dallas, Texas 75219 Telephone: (214) 521-3605 19 20 Attorneys for Plaintiff NEVADA POWER COMPANY, 21 a Nevada Corporation 22 23 UNITED STATES DISTRICT COURT 24 DISTRICT OF NEVADA 25 NEVADA POWER COMPANY, a Nevada corporation, 26 Plaintiff, 27 vs 28 ) ) ) ) ) ) ) CASE NO. CV-S-89-555-LDG (LRL) 1 MONSANTO COMPANY, a foreign 2 Corporation; GENERAL ELECTRIC CORPORATION; a |foreign corpora 3 tion; WESTINGHOUSE ELECTRIC CORPORATION? a foreign corpora- 4 tion; and DOES I through XXV, inclusive1 5 Defendants. 6 7 ) ) ) ) ) ) ) ) ) ) PLAINTIFF NEVADA POWER COMPANY'S NOTICE OP TAKING DEPOSITION OP DEPENDANT WESTINGHOUSE ELECTRIC CORPORATION PURSUANT TO PRCP 3 0 ( b ) (6) BY VIDEOTAPE AND/OR STENOGRAPHIC RECORDING 8 TO DEFENDIAN1TS MONSANTO COMPANY, a foreign corporation; GENERAL 9 ELECTRIC COMPANY, a foreign corporation; WESTINGHOUSE ELECTRIC 10 CORPORATION, a foreign corporation? and to their attorneys of 11 record herein: 12 PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the 13 Federal Rules of Civil Procedure, plaintiff Nevada Power Company 14 will take the deposition of defendant Westinghouse Electric 15 Corporation at 1:00 p.m., on February 26, 1993, at Westinghouse 16 Electric Corporation's corporate headquarters located at 11 Stanwix 17 Street, Westinghouse Building, Pittsburgh, Pennsylvania 15222. The 18 deposition will be taken upon oral examination before a Notary 19 Public or before some other officer authorized by law to administer 20 oaths until completed, and by video tape. You are invited to 21 attend and cross-examine. 22 23 \ \ \ 24 \ \ \ 25 \\\ 26 \ \ \ 27 \ \ \ 28 2 1 The individual(s) produced shall be the ones who can testify 2 concerning the subjects listed on Attachments "A" and "B" to this 3 Notice. 4 5 DATED: February 11, 1993 6 7 BRADLEY & MERRELL RALPH A. BRADLEY PAUL E. MERRELL 8 By 'PAUL E. MERRELL 9 BRADLEY & MERRELL c/o JONES, JONES, CLOSE & BROWN 10 300 South Fourth St., Suite 700 Las Vegas, Nevada 89101 11 (702) 385-4202 12 Attorneys for Plaintiff NEVADA POWER COMPANY 13 14 15 16 17 18 19 20 21 22 23 24 25 P:\USERS\RJS\NVPOWER\WE020293.dep 26 27 28 3 1 2 ATTACHMENT "A" 3 4 Any and all warnings or representations regarding the actual or potential hazards of PCBs (including any and all contaminants, 5 degradates, metabolites, environmental byproducts, etc.) that you contend were given to Nevada Power Company, or to any other person 6 or entity, such as, but not limited to, trade associations, constituting notice to Nevada Power of such warnings or 7 representations prior to or at the time of purchase of each item of equipment at issue in this case. The person or persons you produce 8 should be knowledgable about the specific communications involved, including but not limited to their contents, dates, and surrounding 9 circumstances. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 X ATTACHMENT " B 2 Any and all documents which demonstrate warnings, 3 communicatiions jand representations regarding the actual or potential [hazards of PCBs (including any and all contaminants, 4 dgradtes, metabolites, environmental byproducts, etc.) that you contend were given to Nevada Power Company, or to any other person 5 or entity, such as, but not limited to, trade associations, constituting notice to Nevada Power of such warnings or 6 representations prior to or at the time of purchase of each item of equipment at! issue in this case. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 CHARLES H. McCREA, SR., ESQ. 2 DOUGLAS M. COHEN, ESQ. JONES, JONES, CLOSE 3 & BROWN, CHARTERED 700 Bank of America Plaza 4 300 South Fourth Street Las Vegas, Nevada 89101-6026 5 Telephone: (702) 385-4202 6 PAUL E. MERRELL, ESQ. RALPH A. BRADLEY, ESQ. 7 BRADLEY & MERRELL c/o JONES, JONES, CLOSE 8 & BROWN, CHARTERED 700 Bank of America Plaza 9 300 South Fourth Street Las Vegas, Nevada 89101-6026 10 Telephone: (702) 385-4202 11 DAVID S. MCCREA, ESQ. MCCREA & McCREA 12 119 South Walnut Street Post Office Box 1310 13 Bloomington, Indiana 47402 Telephone: (812) 336-4840 14 FREDERICK M. BARON, ESQ. 15 RUSSELL WILLS BUDD, ESQ. JANE N. SAGINAW, ESQ. 16 BRIAN D. WEINSTEIN, ESQ. PAUL F. DONSBACH, ESQ. 17 BARON & BUDD 3102 Oak Lawn Avenue, Suite 1100 18 Dallas, Texas 75219 Telephone: (214) 521-3605 19 2 0 Attorneys for Plaintiff NEVADA POWER COMPANY, 21 a Nevada Corporation 22 23 UNITED STATES DISTRICT COURT 24 DISTRICT OF NEVADA 25 NEVADA POWER COMPANY, a Nevada corporation, 26 Plaintiff, 27 28 vs ) ) ) ) ) ) ) CASE NO. CV-S-89-555-LDG (LRL) 1 MONSANTO COMPANY, a foreign 2 corporation; GENERAL ELECTRIC CORPORATION; a [foreign corpora 3 tion; WESTINGHOUSE ELECTRIC CORPORATION; a foreign corpora4 tion; and DOES I through XXV, inclusive, 5 Defendants. 6 PLAINTIFF NEVADA POWER COMPANY'S NOTICE OF TAXING DEPOSITION OF DEFENDANT MONSANTO COMPANY PURSUANT TO FRCP 3 0 ( b ) (6) BY VIEOTAPB AND/OR STENOGRAPHIC RECORDING 7 S TO DEFENDANTS MONSANTO COMPANY, a foreign corporation; GENERAL 9 ELECTRIC COMPANY, a foreign corporation; WESTINGHOUSE ELECTRIC k10 CORPORATION, a -foreign corporation; and to their attorneys of 11 record herein: 12 PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the 13 Federal Rules of Civil Procedure, plaintiff Nevada Power Company 14 will take the dLposition of defendant Monsanto Company at 3:00 p.m. 15 on February 22, 1993, and, if necessary continuing at 8:30 a.m. on 16 February 23, 1993 at Monsanto Company's corporate headquarters 17 located at 800 North Lindbergh Boulevard, St. Louis, Missouri 18 63167. The deposition will be taken upon oral examination before a 19 Notary Public or before some other officer authorized by law to 20 administer oaths until completed, and by video tape. You are 21 invited to attend and cross-examine. 22 23 \ \ \ 24 \ \ \ 25 \ \ \ 26 \ \ \ 27 \ \ \ 28 2 1 2 The indiv:.dual(s) produced shall be the ones who can testify 3 concerning the subjects listed on Attachmenta "A" and MBH to this 4 Notice, 5 6 DATED: February 11, 1993 7 8 BRADLEY & MERRELL RALPH A. BRADLEY PAUL E. MERRELL 9 10 c/O JONES, JONES, CLOSE & BROWN 11 300 South Fourth St., Suite 700 Las Vegas, Nevada 89101 12 (702) 385-4202 13 Attorneys for Plaintiff NEVADA POWER COMPANY 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 ATTACHMENT "A" 4 Any and all warnings or representations regarding the actual 5 or potential hazards of PCBs (including any and all contaminants, degradates, metabolites, environmental byproducts, etc.) that you 6 contend were given to Nevada Power Company, or to any other person or entity, such as, but not limited to, trade associations, 7 constituting notice to Nevada Power of such warnings or representations prior to or at the time of purchase of each item of 8 equipment at issue in this case. The person or persons you produce should be knowledgable about the specific communications involved, 9 including but not limited to their contents, dates, and surrounding circumstances. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 ATTACHMENT " B " 2 Any and all documents which demonstrate warnings, 3 communications and representations regarding the actual or potential hazards of PCBs (including any and all contaminants, 4 degradatesj, metabolites, environmental byproducts, etc.) that you contend were given to Nevada Power Company, or to any other person 5 or entity,| such| as, but not limited to, trade associations, constituting notice to Nevada Power of such warnings or 6 representations prior to or at the time of purchase of each item of equipment at issue in this case. 7 8 9 10 11 12 13 14 19 16 17 18 19 20 21 22 23 24 25 26 27 28 5 <:P N S M I T C O N F I RM hiT I U N R E PORT NO. RECEIVER TRANSMITTER OPTE DURATION MODE PAGES RESULT 314 331 9029 BRADLEY FEB * 22J me 93 r r e ll 17 : 5 9 0 6 '17 STD 1C 1 w' OK