Rule 471b
October 19, 2004 9:37 pm by Gene BorioEXCERPT:
[I]t is clear that certain procedures were simply not working, that the record was becoming bloated, unmanageable, and unassimilable, and that parties were unnecessarily inundating the Court to the degree that it was becoming impossible to manage the trial in an orderly and efficient manner. . . .
Each side will be allowed to file no more than 100 prior witness designations. No more than eight prior witness designations may be filed on the Monday preceding the week of trial in which the testimony is to be presented.
Of the 51 prior witness designations filed by the Government before October 1, 2004, the Court deems them to be withdrawn. The Government must re-evaluate the accuracy and utility of those designations. Upon such reevaluation of those designations, the Government may re-file any it chooses prior to the close of its case in chief.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Civil Action No. v. : 99-2496 (GK)
UNITED STATES OF AMERICA,
Plaintiff,
PHILIP MORRIS USA INC.,
f/k/a PHILIP MORRIS INC., et al.,
Defendants.
ORDER #471B
ADDITIONAL TRIAL PROCEDURES
We have now been in the evidentiary portion of this trial for three weeks. A number of new procedural and logistical issues have arisen which necessitate the following changes and additions to the pre-existing trial procedures set forth in Orders #471 and #471A.
The Court regrets that some “ground rules” are being changed midtrial.
However, it is clear that certain procedures were simply not working, that the record was becoming bloated, unmanageable, and unassimilable, and that parties were unnecessarily inundating the Court to the degree that it was becoming impossible to manage the trial in an orderly and efficient manner. In making these changes, the Court has kept in mind the suggestions of counsel offered in their Praecipes and in-court comments and has attempted to fairly balance the concerns voiced by each party about presenting the essential evidence in its case. In view of the foregoing, the Court hereby enters the following Order.
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III. INTERIM SUMMATIONS
There will be two 1 ninety-minute Interim Summations allocated for each side. 2 Defendants may divide their ninety minutes among themselves as they wish.
IV. B. 3. Procedures for Adverse Witnesses and Any Other Witnesses for Which a Written Direct Examination Cannot Be Obtained
d. Once the corrected written direct testimony of an adverse witness is filed and served by 12:00 p.m. on the Friday preceding the week in which such witness is scheduled to testify, that adverse witness is prohibited from discussing his or her testimony with counsel (whether personal counsel of the witness or counsel for any party) until such testimony is concluded.
V. PRESENTATION OF PRIOR TRIAL OR DEPOSITION TESTIMONY (WRITTEN OR VIDEOTAPED)
Each side will be allowed to file no more than 100 prior witness designations. No more than eight prior witness designations may be filed on the Monday preceding the week of trial in which the testimony is to be presented.
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1 It would appear from Plaintiff’s trial outline that it is requesting six Interim Summations. That request is clearly excessive.
2 Because the admissibility of certain exhibits and prior witness designations may not yet have been decided by the time of the Interim Summation, counsel will be permitted to refer to such exhibits and testimony during those Summations.
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Of the 51 prior witness designations filed by the Government before October 1, 2004, the Court deems them to be withdrawn. 3 The Government must re-evaluate the accuracy and utility of those designations. Upon such reevaluation of those designations, the Government may re-file any it chooses prior to the close of its case in chief. Those which are re-filed will count toward the total number permitted.
VIII. EXHIBITS
There is a rebuttable presumption of admissibility for any exhibits cited, referred to, or discussed in the proposed Findings of Fact filed by the Government on June 15, 2004 and by the Defendants on July 1, 2004, or in the direct written testimony of live witnesses, or in the designated and counter-designated testimony of prior witnesses. The party challenging admission of these exhibit bears the burden of proof in overcoming the presumption.
There is a rebuttable presumption of non-admissibility for any exhibits which were not cited, referred to, or discussed in the proposed Findings of Fact filed by the Government on June 15, 2004 and by the Defendants on July 1, 2004, in the direct written testimony of live witnesses, or in the designated and counterdesignated testimony of prior witnesses. The party seeking
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3 This ruling does not apply to the prior testimony of Clarence Cook Little which the Court has already read and ruled upon.
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admission of these exhibits bears the burden of proof in overcoming the presumption.
As to any authentic and non-hearsay exhibits which are presumptively inadmissible, the party seeking to overcome that presumption must file, at the time of filing the exhibit list submitted by 5:00 p.m. of the Monday preceding the following week of trial in which the witness is scheduled to testify, a brief statement identifying the document and its relevance to the testimony of the related witness.
At the close of each side’s case-in-chief and rebuttal, the Court will consider admitting a very limited number of authentic, non-hearsay, “orphan†exhibits, on the basis of their relevancy and importance, which may not have been admitted in evidence.
Once a definitive ruling admitting or excluding evidence is made on the record, either at or before trial, parties shall not renew their objections to preserve a claim of error for appeal; all previously made objections are preserved for appeal. See Fed. R. Ev. 103 (a).
It is so Ordered.
/s/
October 18, 2004 Gladys Kessler
United States District Court Judge
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