Harvill Industries, Ltd. v. Adcor Industries, Inc., No. 4:2008cv00044 - Document 70 (N.D. Okla. 2009)

Court Description: OPINION AND ORDER by Judge Gregory K Frizzell ; granting in part and denying in part 39 Objection to Deposition Designations (Re: 39 BRIEF in Support of Some of its Objections to Defendant's Deposition Designations re: depo of William Harvill ) (pll, Dpty Clk)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA HARVILL INDUSTRIES, LTD., Plaintiff, vs. ADCOR INDUSTRIES, INC., Defendant. ) ) ) ) ) ) ) ) ) Case No. 08-CV-448-GKF-PJC OPINION AND ORDER Before the cour t a re t he Objections of pl aintiff Harvill Industries, Ltd. to Defendant s Deposition Designations t o the deposition testim ony of W illiam Harvill. [Docum ent No. 39]. Plaintiff objects to the use of Harvill s testim for purposes other than for cross-exam ony ination and impeachment because Harvill will be present at tria and live testimony is preferable to deposition l, testimony. Rule 32 of the Federal Rules of Civil Procedure provides that [a]n adverse party may use for any purpose the deposition of a party or anyone who, when deposed, w as the party s of ficer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4 In this case, W ). illiam Harvill is President and owner of plai ntiff Harvill Industries and was designated as Harvill s 30(b)(6) corporate representative on topics 1, 2, 3, 6, 7, 10, 11, 12, 13, and 14 listed in ADCOR s 30(b)(6) 8, notice. In addition, plaintiff designated Harvill to testify as corporate representative in part on the topics listed in item 4, 5 and 9 of the 30(b)(6) deposition notice.1 1 As to item 4 - [t]he terms of the agreement between ADCOR and Harvill for the work performed by Harvill at the Gatorade plant in Pryor Oklahoma, plaintiff designated Harvill to testify as to what is in the final signed documents. As to item 5 [a]ll change orders and the basis for all change orders proposed by Harvill to ADCOR, plaintiff designated Harvill to testify as to all the change orders that [were] given or received after the time [Harvill] was on the project. And as to item 9 Harvill s quote for the Gatorade plant project and the process by which the quote was prepared, Harvill testified he reviewed the quote for the Gatorade plant project and that he could testify about 70 percent of the topic. adversary s officers and 30(b)(6) representatives, and it is quite uit agrees that Rule 32 allows a party to introduce as a part of his substantive ilable to testify at the trial or has testified there. Coletti v. Cudd f a corporate adversary s officers and 30(b)(6) representatives, and it is quite 73 (10th cir. 1999), quoting King & King Enters. v. Champlin ersary is available to testify at the trial or has testified there. Coletti v. Cudd The Tenth Circuit agrees that Rule Inc., 3-64 (10th Cir. 1981); see also Patsy s Italian Restaurant, 32 allows a party to introduce as a part of his substantive F.3d 767, 773 (10th cir. 1999), quoting King & King Enters. v. Champlin proof the Despite the a corporate adversary s 00 n.7 (E.D.N.Y. 2007). deposition of Rule, the admission of officers and 30(b)(6) representatives, and it is quite 2d 1147, 1163-64 (10th Cir. 1981); see also Patsy s Italian Restaurant, Inc., immaterial that trial court, which has a perfect at the trial or has testif there. Coletti v. Cudd testify ied ect to the sound discretion of thethe adversary is available to . 2d 194, 200 n.7 (E.D.N.Y. 2007). Despite the Rule, the admission of Rule 32 allows a Pressure Control, as a F.3dof his 773 (10th cir. 1999), quoting King & King Enters. v. Champlin party to introduce or immaterial. Coletti, 165 al if [the deposition] is repetitious 165 part 767, substantive emains subject to the sound discretion of the trial court, which has a perfect versary s officers and 30(b)(6) representatives, and court(10th Cir. 1981); see alsoPatsy s Italian Restaurant, Inc., Petroleum Co., 657 F.2d mind, the it is makes 57 F.2d at 1164. With those principles in1147, 1163-64quite lows a party to introduce as a part of his substantive f the material if [the deposition] is repetitious or immaterial. Coletti, 165 ble to testify to the Banas, has testified quite v. trial or 508 and it is designations v. William ission of sofficers and 30(b)(6) representatives,F.Supp.there. Colettiof Cudd objections at defendant s deposition 2d 194, 200 n.7 (E.D.N.Y. 2007). Despite the Rule, the adm ng & King, 657 F.2d at 1164. With those principles in mind, the court makes ify at the trial or has quoting King & King Enters. v. Champlin (10th cir. 1999),testified there. Coletti v.remains subject to the sound discre deposition testimony Cudd tion of the trial court, which has a perfect on plaintiff s objections to defendant s deposition designations of William . 1999), quoting King & King Enters. v. Champlin 64 (10th Cir. 1981); see limitPatsy s Italian material if [the deposition] is repetitious or immaterial. Coletti, 165 right to also the use of the Restaurant, Inc., uled. Cir. 1981); see also Patsy s Italian Restaurant, Inc., n.7 (E.D.N.Y. 2007). 773,quoting King &the admission of 1164. W those principles in mind, the court m ith akes Sustained. F.3d at Despite the Rule, King, 657 F.2d at N.Y. 2007). Despite the Rule, the admission of 1-20. Overruled. to the sound discretion of the trial court, which has objections to defendant s deposition designations of William the following rulings on plaintiff s a perfect uled. und discretion of the trial court, which has a perfect s 6-8 and 14. Sustained. f, [the deposition] is immaterial. Coletti, 165 position] is repetitious orrepetitious or immaterial. Coletti, 165 Harvill: line 5. Overruled. s 7-9. Overruled. 164. With those principles in mind, the court makes the court makes F.2d at 1164. to Defendant s43, lines 1-20. Overruled. to the 1. P. Deposition Designations Objections With those principles in mind, 20defendant s deposition designations of William to to P. 223, line 5. Overruled. bjections to defendant s deposition designations of sustained in 2. P. overruled in and 14. William arvill [Document No. 39] are156, lines 6-8part and Sustained. E, Plaintiff s Objections to Defendant s Deposition Designations to the 3. P. 171, lines 7-9. Overruled. of William Harvill [Document No. 39] are overruled in part and sustained in d. 4. P. 220, line 20 to P. 223, line 5. Overruled. 009. ustained. WHEREFORE, Plaintiff s Objections to Defendant s Deposition Designations to the ay of May 2009. Overruled. d. deposition testimony of William Harvill [Document No. 39] are overruled in part and sustained in s to Defendant s Deposition Designations to the ne 5. Overruled. part. ument No. 39] are overruled in part and sustained in bjections to Defendant s Deposition Designations to the Dated this 1st day of May 2009. ill [Document No. 39] are overruled in part and sustained in 9.

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