Opinion
A03-290 CV (JWS), [Re: Motion at Docket 155].
November 10, 2005
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 155, Dick Pacific/Ghemm Joint Venture ("DPG") moves to exclude the opinions of Stephen C. Schwartz on a number of topics. At docket 179, Poong Lim/Pert Joint Venture ("Poong Lim") opposes the motion, and a reply has been filed. DPG has requested oral argument, but it would not assist the court. Therefore, DPG's request is denied.
D. Alaska R. 7.2(a)(3)[B].
II. DISCUSSION
DPG's motion is a curious document. While DPG generally asks the court to exclude the expert opinion testimony of Stephen C. Schwartz, DPG does not provide a copy of his expert report which would set out the opinions on which he is actually prepared to opine at the behest of Poong Lim. Instead, DPG provides a copy of Schwartz's deposition testimony and then focuses its argument exclusively on various passages in the deposition testimony. Yet, much of what DPG references appears to be testimony elicited by DPG's own counsel on topics the court cannot believe are topics for which Schwartz would be offered to testify at trial by Poong Lim — topics such as Schwartz's opinions regarding Korean culture, his view of contract interpretation under Korean law, and his view of contract interpretation under Alaska law. In any event, the court is constrained to construe DPG's motion as it is written. It is a request for an order excluding the opinions expressed at various places in Schwartz's deposition testimony, not the opinions expressed in his expert report.To the extent the motion is concerned with evidence that might be presented at trial, it is at least, premature, and probably unnecessary. In any federal trial court a party cannot offer its own witness' substantive testimony by deposition unless the witness is dead or otherwise unavailable within the meaning of Rule 32(a)(3). There is no showing that Schwartz's testimony will be offered by deposition. Even if Schwartz's testimony were eventually to be offered at trial pursuant to Rule 32(a)(3), under this court's standard trial setting order, it would be necessary for Poong Lim to designate specific passages of Schwartz's deposition testimony well before trial would commence. Once that were done, the trial setting order would give DPG an opportunity to file specific objections to any designated deposition testimony. The court would then resolve the specific objections before trial commenced.
DPG's motion might not be premature as to some portions in Schwarz's deposition if Poong Lim had cited those portions of Schwartz's deposition testimony in connection with a pending summary judgment motion. However, if that is the case, DPG has failed to show it. The court is not prepared to simply assume that all of the deposition testimony which is the subject of the motion has been cited by Poong Lim somewhere in the mass of motions on file in this case.
Use of deposition testimony in summary judgment practice is governed by FED. R. CIV. P. 56, not FED. R. CIV. P. 32.
III. CONCLUSION
For the reasons set out above, the motion at docket 155 is DENIED.